Petition for Writ of Certiorari — Perpich v. Department of Defense
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IN THE
Supreme Court of the United States
OCTOBER TERM. 1988
RUDY PERPICH, as Governor of the State of Minnesota,
and THE STATE OF MINNESOTA, by its Attorney
General Hubert H. Humphrey, III,
Petitioners,
vs.
UNITED STATES DEPARTMENT OF DEFENSE,
et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
(PART I)
HUBERT H. HUMPHREY, III
Attorney General
State of Minnesota
JOHN R. TUNHEIM
Chief Deputy
Attorney General
Of Counsel: Counsel of Record
PETER M. ACKERBERG 102 State Capitol
Special Assistant St. Paul, Minnesota 55155
Attorney General Telephone: (612) 296-2351
Ker Review Publishing Ce. 287 E Gt) St, St Paul, Min. r — «226-7631
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QUESTION PRESENTED
Can Congress abrogate the States’ specifically reserved au-
thority for militia training in the absence of a declared na-
tional emergency without violating the militia training clause
of the United States Constitution, art. I, § 8, cl. 16?
PARTIES TO THE PROCEEDINGS
In addition to the partie: listed in the caption, the following
are respondents: United States Department of the Air Force,
United States Department of the Army, National Guard Bu-
reau, the Secretary of Defense, the Secretar. of the Army, the
Secretary of the Air Force, and the Chief of the National
Guard Bureau.
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Statement Of The Cases
Reasons For Granting The Writ . 1
1. The Eighth Cireuit's Decision Is
2. There Are Strong Reasons To Believe The
Eighth Circuit’s Decision Was Wrong
Conclusion sates 335274 *
APPENDIX — PARTS I & II
1. Eighth Circuit en bane opinion (Part I)
2. Amended Order (Part I)
8. Eighth Circuit panel opinion (Part II)
4. District Court memorandum order (Part II)
oan wo —
15 TABLE OF AUTHORITIES
*
United States Constitution: Page
U.S. Const. art. 1, § 8, cl. 12 R
U.S. Const. art. I. § 8, cl. 15 OTe rr
U.S. Const. art. I, § 8, cl. 16 ü
A ooo 0000088. 8
Minnesota Constitution
„„ 5
Federal Statutes:
SE 2
V 5
V 5
10 U.S.C. 8 672 (b) A tee oa ee 3,5
10 U.S.C. § 672(d) pk MOS ots San Me
10 U.S.C. § 672(f) 4,5
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r a 2
D 2
VW 2
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Minnesota Statutes:
Minn. Stat. § 190.02 (1980))) 5
iii
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:
Federal Decisions: Page
Dukakis v. United States Department of Defense,
859 F.2d 1066 (Ist Cir. 198890) 9, 10
Gareia v. San Antonio Metropoliten Transit Authority,
469 U.S. 528, 549 (19880) 8 8, 13
Massachusetts v. United States Dept. of Defense,
e... 8 9
New York v. United States,
996 U.S. OTR, ee)) 14
Selective Draft Law Cases,
„„ „„ „ „„ 6, 7, 13, 14
Ullman v. United States,
INL. CRBS) .... «5 cece ences. 14
United States v. Carver,
260 U.S. 48%, 490 (1983) ᷑ 2-2-2 eee eee 9
Woodson v. Murdock,
89 U.S. (22 Wall.) 351, 369 (187) ll
Decisions of Other Jurisdictions:
United States v. Hudson,
5 M. J. 413, 418 (C.M.A. 1970) 10
United States v. Peel,
4 M. J. 28, 29 (C. M. A. 1977) dn 10
United States v. Self,
13 M.J. 132, 185 (C.M.A. 1978) 1
lv
* r .... . eee ee vv
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
No.
RUDY PERPICH, as Governor of the State of Minnesota,
and THE STATE OF MINNESOTA, by its Attorney
General Hubert H. Humphrey, III,
Petitioners,
vs.
UNITED STATES DEPARTMENT OF DEFENSE,
et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
The petitioners respectfully pray that a writ of certiorari
issue to review the judgment and opinion of the United States
Court of Appeals for the Eighth Circuit, entered in the above-
entitled proceeding on June 28, 1989.
OPINIONS BELOW
The en banc opinion of the Court of Appeals for the Eighth
Circuit is reported at 880 F.2d 11, and is reprinted in the ap-
pendix hereto (Part I), p. A-1.
The panel opinion of the Court of Appeals for the Eighth
Circuit has not been reported. It is reprinted in the appendix
hereto (Part II), p. A-63.
The memorandum decision of the United States District
Court for the District of Minnesota (Alsop, J.) is reported at
666 F. Supp. 1319, and is reprinted in the appendix hereto
(Part II), p. A-141.
JURISDICTION
Invoking federal jurisdiction under 5 U.S.C. § 702 and 28
U.S.C. §§ 1331, 2201 and 2202, the petitioners brought this
suit in the District of Minnesota. On August 3, 1987, the Dis-
trict of Minnesota granted the respondents’ motion for sum-
mary judgment and denied the petitioners’ motion for sum-
mary judgment. See p. A-153.
On petitioners’ appeal, a three-judge panel of the Eighth
Circuit on December 6, 1988, reversed the judgment of the
district court and remanded the matter for further proceed-
ings consistent with the panel’s opinion. See p. A-123. Respon-
dents moved for rehearing en banc. On January 11, 1989, the
Eighth Circuit granted respondents’ motion for rehearing en
banc, and vacated the court’s opinion and judgment of Decem-
ber 6, 1988. See p. A-62.1. On June 28, 1989, the judgment of
the district court was affirmed by the Eighth Circuit. See p.
A-14.
The jurisdiction of this Court to review the judgment of the
Eighth Circuit is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
U.S. Const. art. I, § 8, cls. 15 and 16 provide:
The Congress shall have power
1151 To provide for calling forth the Militia to exe-
cute the Laws of the Union, suppress Insurrections and
repel Invasions;
[16] To provide for organizing, arming, and disciplin-
ing the Militia, and for governing such Part of them as
may be employed in the Service of the United States, re-
serving to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia accord-
ing to the discipline prescribed by Congress... .
U.S. Const. art. 1, § 8, cl. 12 provides:
The Congress shall have power
[12] To raise and support Armies, but no Appropria-
tion of Money to that Use shall be for a longer Term than
two Years....
10 U.S.C. §§ 672(b) and (d) (1982) provide:
(b) At any time, an authority designated by the Sec-
retary concerned may, without the consent of the persons
affected, order any unit, and any member not assigned
to a unit organized to serve as a unit, in an active status
in a reserve component under the jurisdiction of that
Secretary to active duty for not more than 15 days a year.
However, units and members of the Army National Guard
of the United States or the Air National Guard of the
United States may not be ordered to active duty under
this subsection without the consent of the governor of the
4
State or Territory, Puerto Rico, or the Canal Zone, or the
commanding general of the District of Columbia National
Guard, as the case may be.
8 2 *
(d) At any time, an authority designated by the Sec-
retary concerned may order a member of a reserve com-
ponent under his jurisdiction to active duty, or retain him
on active duty, with the consent of that member. However,
a member of the Army National Guard of the United
States or the Air National Guard of the United States
may not be ordered to active duty under this subsection
without the consent of the governor or other appropriate
authority of the State or Territory, Puerto Rico, the Canal
Zone, or the District of Columbia, whichever is concerned.
10 U.S.C. § 672(f) (Supp. IV 1986) provides:
(f) The consent of a Governor described in subsec-
tions (b) and (d) may not be withheld (in whole or in
part) with regard to active duty outside the United States,
its territories, and its possessions, because of any objec-
tion to the location, purpose, type, or schedule of such ac-
tive duty.
STATEMENT OF THE CASE
Respondents ordered members of the Minnesota National
Guard to federal active duty for training missions in Central
America pursuant to 10 U.S.C. §§ 672 (b) or 672 (d). Com-
plaint, para. 16. Members of the Minnesota National Guard
are also enlisted in the National Guard of the United States,
a reserve component of the national armed torces. 32 U.S.C.
§§ 101 (47), 304; 10 U.S.C. 88 101 (11-12), 261, 326i, 8261
(1982 & Supp. V 1987). Petitioner Governor Perpich is com-
mander- in- chief of the State’s military forces pursuant to
Minn. Const. art. V., § 3, and Minn. Stat. § 190.02 (1988).
Complaint, para. 3. He would not have consented to one of
the training missions but for the restrictions imposed by
10 U.S.C. § 672(f) (hereinafter “Montgomery Amendment”).
Complaint, para. 19. If Petitioner Perpich objects to the loca-
tion, purpose, type or schedule of future orders directed at
members of he Minnesota National Guard for active duty
training outside the United States during peacetime, he would
withhold his consent to such orders. Id., para. 21.
Petitioners prayed for ihe district court to declare the
Montgomery Amendment unconstitutional and moved for sum-
mary judgment. Id., prayer fo. relief at p. 7. They argued
that the Montgomery Amendment violates U.S. Const. art. I,
§ 8, cl. 16 (hereinafter “militia training clause”) because that
clause expressly reserves to each State authority to train the
National Guard, which is the modern-day militia, and thereby
requires State consent to National Guard training exercises in
peacetime.
Respondents moved to dismiss the complaint. They argued
that State consent to National Guard training is not constitu-
tionally required when the National Guard is ordered to active
federal duty. When in federal service, the National Guard is
subject to Congress’ plenary power under U.S. Const. art. I,
§ 8, cl. 12 (hereinafter “army clause”), to provide for the
national defense, respondents contended. They further argued,
citing the Selective Draft Law Cases, 245 U.S. 366 (1918),
that the militia training clause does not constrain Congres-
sional authority under the army clause.
On August 3, 1987, the district court, adopting respondents’
theory, dismissed the action. See p. A-153.
On December 6, 1988, a divided panel of the Eighth Circuit
reversed the district court’s judgment and remanded the mat-
ter for further proceedings consistent with its opinion. See
p. A-123. It held that the Montgomery Amendment is uncon-
stitutional because the militia training clause requires State
consent to peacetime training of the National Guard.
On January 11, 1989, the Eighth Circuit granted respon-
dent’s petition for rehearing en banc and vacated the court’s
panel opinion and judgment of December 6, 1988. See p. A-62.1.
On June 28, 1989, a divided Eighth Circuit en banc affirmed
the judgment of the district court. See p. A-1. It upheld the
Montgomery Amendment on the ground that the militia train-
ing clause does not limit congressional authority to train the
National Guard when it is in active federal service and,
therefore, State consent to training exercises is not constitu-
tionally required. The Eighth Circuit en banc opinion relied
in part on the Selective Draft Law Cases in deciding that the
Montgomery Amendment does not infringe on State training
authority. The Selective Draft Law Cases “made clear that the
army clause is not limited by the militia clause,” the majority
opinion asserted. See p. A-11. Thus, when Guard units are
ordered into federal service in their role as a reserve com-
ponent of the federal armed forces, the militia clause is not
7
applicable, it added. See p. A-12-13. Therefore, according to
the Eighth Circuit majority, the Montgomery Amendment is a
constitutional exercise of Congress’ army powers. See p. A-13.
The dissent argued, in part, that Selective Draft Law Cases
merely held that Congress could require compulsory military
service during wartime an did not support the majority’s
view. See p. A-25. Furthermore, it construed the Selective
Draft Law Cases to require a “national exigency” before the
federal government can exercise its army power to supersede
reserve State authority over militia training. See p. A-40-42.
Almost a third of the 49-page dissenting opinion focused on
the framers’ intent in adopting the militia training clause. It
concluded that reserved State authority over the militia “rep-
resented [a] fundamental structural decision[] by the Fram-
ers” desigred to insulate militia authority “from uncontrolled
and potentially irresponsible short-term political reaction.”
See p. A-31.
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REASONS FOR GRANTING THE WRIT
DECIDING THAT THE STATES’ EXPRESS CONSTITU-
TIONAL AUTHORITY OVER PEACETIME NATIONAL
GUARD TRAINING CAN BE NEGATED BY CONGRESS
IS AN EXCEPTIONALLY IMPORTANT ERROR DISPLAC-
ING AN ASPECT OF STATE SOVEREIGNTY THAT
SHOULD BE PROMPTLY CORRECTED.
1. The Eighth Circuit’s Decision Is Exceptionally Impor-
tant.
The Eighth Circuit made an exceptionally important deci-
sion by abrogating a power explicitly reserved to the States
by U.S. Const. art. I, § 8, cl. 16. Because the case involves the
important subject of federal-state relations coupled with the
sensitive matter of governmental power to authorize National
Guard training, the Eighth Circuit decision has implications
for all the States and the federal government. A decision on
such an issue, depriving the states of constitutionally-granted
authority, should not remain unreviewed by this Court.
The decision that the States can be stripped of their author-
ity regarding militia training is all the more egregious because
the power is expressly conferred by the Constitution. “With
rare exceptions, like the guarantee, in Article IV, § 3, of State
territoria! integrity, the Constitution does not carve out ex-
press elements of State sovereignty that Congress may not em-
ploy its delegated powers to displace.” Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528, 550 (1985). The
militia training clause, like article IV, § 3,' is one of those rare
exceptions.
1U.S. Const., art. IV, § 3 requires State legislative consent for the
formation of any State “by the junction of two or more states or
parts of states
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The Montgomery Amendment should not be permitted to
contravene the general conviction that the Constitution pre-
cludes the National Government [from] devour[ing] the es-
sentials of state sovereignty. Jd. at 549 (citation omitted).
This Court's repeated recognition “that state sovereignty is a
fundamental component of our system of government” and
that “the states possess constitutionally preserved sovereign
powers,” id. at 573-74, (Powell, J., dissenting), will be under-
mined by the Montgomery Amendment if this Court does not
review and reverse the circuit court.
Although this Court denied a petition for a writ of certiorari
to the United States Court of Appeals for the First Circuit in
a similar State challenge to the constitutionality of the Mont-
gomery Amendment, Massachusetts v. United States Dept. of
Defense, 109 S.Ct. 1743 (1989), “denial of a writ of certiorari
imparts no expression upon the merits of a case, as the bar
has been told many times. United States v. Carver, 260 U.S.
482, 490 (1923). Thus, this Court has not addressed the merits
of a challenge to Congressional abrogation of the States’ ex-
pressly reserved power to authorize militia training.
The Court should address the constitutionality of the Mont-
gomery Amendment now because military training authority
is directly implicated in the circuit court’s decision. The proper
allocation of such authority is a sensitive governmental func-
tion that should not be the subject of multiple, prolonged and
confusing litigation.
There is a realistic potential for intercircuit conflict on the
constitutionality of the Montgomery Amendment. The Eighth
Circuit panel decision was, before its vacation, directly in con-
flict with a decision in the First Circuit. Dukakis v. United
States Department of Defense, 859 F.2d 1066 (Ist Cir. 1988),
cert. denied sub nom. Massachusetts v. United States Dept. of
Defense, 109 S. Ct. 1743 (1989). Thus, an intercircuit split has
ee ee a ee ee eee.
10
occurred in the past and, therefore, is not a remote future
possibility. Furthermore, the Court of Military Appeals con-
cluded before enactment of the Montgomery Amendment that
the gubernatorial consent requirement of 10 U.S.C. § 672(d)
“has constitutional underpinnings” in the militia clause. Unit-
ed States v. Peel, 4 M.J. 28, 29 (C. M. A. 1977) ; accord United
States v. Self, 18 M. J. 182, 185 (C.M.A. 1978) ; United States
v. Hudson, 5 M.J. 418, 418 (C.M.A. 1978). Thus, there is a
real potential for a split between the Ccurt of Military Ap-
peals and the First and Eighth Circuits.
The exceptional importance of authoritatively resolving the
validity of the Montgomery Amendment is indicated by the
fact that 28 States participated as amici in the Eighth Circuit.
See p. A-5, n.5. As respondents properly advised the Eighth
Circuit, this matter encompasses “issues of exceptional prac-
tical and legal importance.” Petition For Rehearing and Sug-
gestion For Rehearing n Banc at 5. Furthermore, as respon-
dents have observed, the emergence of conflicting court deci-
sions on this issue “can be expected to spawn confusion and
much litigation .. . Id. at 15, n.10. This case presents the
Court with an opportunity to avoid needless confusion and
litigation on a sensitive subject.
The circumstances presented to this Court in the earlier
petition for a writ of certiorari are significantly different
here and make the issue ripe for an authoritative review by
the Court. In the earlier case, the First Circuit affirmed the
judgment of the District Court upholding the Montgomery
Amendment in a one-sentence opinion. Dukakis v. United
States Department of Defense, 859 F.2d 1066 (Ist Cir. 1988).
In this case, the constitutionality of the Montgomery Amend-
ment was independently analyzed in an extensive opinion by
the circuit court. Furthermore, the dissenting opinion in the
11
Eighth Circuit case presents a careful review of historical
materials evidencing the framers’ intent in adopting the mili-
tia training clause. Thus, this Court’s review of the validity of
the Montgomery Amendment now would have the benefit of
extensive prior consideration by the circuit court, a venefit
not presented by the earlier petition.
2. There Are Strong Reasons To Believe The Eighth Cir-
cuit’s Decision Was Wrong.
The Eighth Circuit erroneously framed the issue before it
this way:
The issue, simply put, is this: when the State claims
a right to control Militia training, and Congress claims,
‘we're training the Army, not the Militia,’ who wins?
See p. A-9.
By reducing the interplay of the militia training and army
clauses to a semantical word game with a predictable winner,
the Eighth Circuit oversimplified the issue before it and
reached a wrong conclusion. A proper constitutional analysis
would examine the text of the relevant provisions in light of
the framers’ intentions. Woodson v. Murdock, 89 U.S. (22
Wall.) 351, 369 (1874) (constitutional provisions construed
“to express the intention of the framers”). However, the
Eighth Circuit en banc opinion does not consider the framers’
intent at all, and that intent is inconsistent with the circuit
court’s conclusion.
Neither the text of the militia training clause nor the
framers’ intent in drafting it support the circuit court’s con-
clusion that the Montgomery Amendment is constitutional.
The text, as the dissenters put it, “is an unambiguous command
... which we cannot ignore.” See p. A-32.
3 „
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In an exhaustive examination of historical sources evidenc-
ing the framers’ intent, the dissent found no indication that
“the Framers believed the power to raise armies could super-
sede reserved state authority over the militia at will.” See
p. A-29. On the contrary, the framers’ intent was to reach a
workable compromise between advocates of strong federal
control over State militias, who sought to assure the creation
and maintenance of an effective national military force, and
States’ rights proponents, who feared excesses by a powerful
standing army controlled by federal authorities. See p. A-19.
One of the resulting compromises was to divide State
militia authority between federal and State governments. The
federal government was authorized to arm, organize, and dis-
cipline the militia. It would also govern the militia when em-
ployed in federal service. However, the framers reserved to
the States the appointment of officers and the authority of
training the militia according to federal standards. This com-
promise is unambiguously incorporated into the text of U.S.
Const. art. I, § 8, cls. 15 and 16.
The framers did not intend that either the State’s reserved
powers of appointment and/or its reserved power to authorize
training could be usurped at will under the army power by
transforming the State militia into a fede.al force for any
reason or no reason without regard to whether or not national
security was threatened. Such unrestrained federal authority
would mean, as the dissenting opinion put it, that “the federal
government could use the army power at will to make the
militia a federal force under its plenary control, [and] the
Militia Clauses could not serve their intended purpose to pro-
tect the states against potential oppression by the federal
army.” See p. A-30. A divided federal-State authority over the
militia was intended to quiet the fear of some framers “that
13
if the militia did not exist to protect state interests, the army
might be used by the federal government to oppress the states
and their citizens.” See p. A-29. Thus, the militia training
clause expressly preserves an aspect of the States’ sovereignty
—their power to authorize militia training.
The States retain sovereign authority “only to the extent
that the Constitution has not divested them of their original
powers and transferred those powers to the Federal Govern-
ment.” Garcia v. San Antonio Metropolitan Transit Authority,
469 U.S. 528, 549 (1985). The power to authorize militia
training not only was not transferred by the Constitution to
the federal government, but instead was expressly reserved to
the States.
The reliance of the national government on an effective
National Guard available for federal service when required
presents no obstacle to respecting the State’s expressly re-
served authority over National Guard training. The National
Guard remains available for federal service for any constitu-
tionally permissible purpose, which includes the execution of
federal las, suppression of insurrections and repelling in-
vasions. U.S. Const. art. I, § 8, cl. 15.
Furthermore, the Szlective Draft Law Cases, 245 U.S. 366
(1918), properly construed, authorize the use of the National
Guard in cases of acknowledged “exigencies.” The Court in
Selective Draft Law Cases stated:
But the duty of exerting the [Army Clause] power
thus conferred in all its plentitude was not made at once
obligatory but was wisely left to depend upon the discre-
tion of Congress as to the arising of the exigencies which
would call it in part or in whole into play.
245 U.S. at 382-83 (emphasis added). Thus, the Army Clause
may be invoked to train National Guard members whenever an
» — CB a ee eee ee ee ,,,, eee ůͥ ee 4r ͤᷣ d eas ae -w- nung
14
emergeney is declared by Congress or, additionally, as the dis-
sent suggested, the President. See p. A-40-42.
Nothing in the Selective Draft Law Cases, which merely
upheld the federal government’s authority to conscript male
citizens during wartime, suggests that the militia training
clause can be rendered superfluous whenever the federal gov-
ernment chooses to designate the National Guard as a federal
entity and order that entity to engage in training.
The circuit court’s reliance on the Selective Draft Law
Cases for the proposition that “the army clause is not limited
by the militia clause” is not well-founded. By construing the
interplay of the two clauses to permit the army clause to
checkmate the militia training clause, the circuit court opin-
ion collides with this Court’s obligation to construe constitu-
tional provisions so that none . . suffer subordination or
deletion.” Ullman v. United States, 350 U.S. 422, 428 (1955).
The Eighth Circuit’s sweeping construction of the Selective
Draft Law Cases eviscerates the militia training clause. This
is especially remarkable in light of the narrow holding of the
case—that wartime conscription is within Congressional au-
thority—and its express language cautioning against “weak-
ening or destroying” either state or federal powers under the
militia and army clauses. Selective Draft Law Cases, 245 U.S.
at 384.
The expressly reserved State powers in the Constitution
were “designed to keep the balance between the States and the
nation outside the field of legislative controversy.” New York
v. United States, 326 U.S. 572, 594 (1946) (Douglas, J., dis-
senting). The Eighth Circuit, by upholding the Montgomery
Amendment, misplaces explicit reserved State authority over
militia training squarely into the federal legislative arena.
15
The interplay of the militia and army clauses has not been
directly addressed by this Court for more than 50 years be-
cause until now Congress has not sought to remove the States’
expressly reserved militia training authority. Now that Con-
gress has overstepped its limited authority over militia train-
ing, it is time for the Court to revisit the subject.
CONCLUSION
In light of the Eighth Circuit’s exceptionally important
error, the significance of a uniform national construction of
the interplay of the army and militia training clauses in the
context of authorizing National Guard training, the signifi-
cant potential for inter-circuit conflicts on this issue, and the
opportunity presented here to avoid unnecessary and pro-
longed confusion, the Court should grant this petition.
Respectfully submitted,
HUBERT H. HUMPHREY, III
Attorney General
State of Minnesota
JOHN R. TUNHEIM
Chief Deputy
Attorney General
Counsel of Record
102 State Capitol
St. Paul, MN 55155
Telephone: (612) 296-2351
OF COUNSEL:
PETER M. ACKERBERG
Special Assistant
Attorney General
September 26, 1989
A-1
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 87-5345
Submitted: February 16, 1989
Filed : June 28, 1989
Rudy Perpich, Governor of the State of Minnesota ;
State of Minnesota, by its Attorney General
Hubert H. Humphrey, III,
Appellants,
v.
United States Department of Defense, United States
Department of Air Force, United States Department
of Army, National Guard Bureau, Caspar W. Weinberger,
Secretary of Defense; John O. Marsh, Jr., Secretary of
the Army; Edward C. Aldridge, Secretary of the Air Force;
Lt. Gen. Herbert R. Temple, Jr., National Guard Bureau,
: Appellees.
Commonwealth of Massachusetts,
AMICUS CURIAE
U. S. National Guard Assn.,
AMICUS CURIAE
Appeal from the United States District Court for
the District of Minnesota. |
Before McMILLIAN, Circuit Judge, HEANEY, Senior Cir-
cuit Judge, ARNOLD, JOHN R. GIBSON, FAGG, BOW-
C Ni ae a il i i te
A-2
MAN, WOLLMAN, MAGILL, and BEAM, Circuit Judges,
EN BANC.* ©
MAGILL, Circuit Judge.
In this opinion, we address a challenge to the constitution-
ality of the Montgomery Amendnient, which restricts the
power of state governors to withhold consent to federal de-
ployment of the National Guard of the United States. We hold
that the Constitution does not require gubernatorial consent
to active duty for training of the National Guard of the United
States. Based on the statutory system of dual enlistment and
the relationship between the Constitution’s army and militia
clauses, we find the Montgomery Amendment to be a consti-
tutional exercise of congressional power.
I.
In 1985 and 1986, several governors objected to deployment
of National Guard personnel to Central America. The gov-
ernors withheld (or threatened to withhold) their consent
to federally ordered active duty missions by their States’
National Guards. 10 U.S.C. § 672 (b), (d) (1982) .* In response,
*The HONORABLE GERALD W. HEANEY, a member of the
original panel, assumed senior status on December 31, 1988.
The HONORABLE DONALD P. LAY, Chief Judge, did not par-
ticipate in the consideration or decision of this case.
1 Reserve units and members of the National Guard of the United
States may be activated “at any time * * * for not more than
fifteen days a year,” but not without the governor's consent:
At any time, an authority designated by the Secretary con-
cerned may, without the consent of the persons affected, order
any unit, and any member not assigned to a unit organized to
serve as a unit, in an active status in a reserve component un-
der the jurisdiction of that Secretary to active duty for noi
more than 15 days a year. However, units and members of the
Army National Guard of the United States or the Air National
Guard of the United States may not be ordered to active duty
4 8
Congress enacted the Montgomery Amendment, which pro-
hibits the governors from withholding consent to active duty
outside the United States because of objections to the location,
purpose, type, or schedule of active duty. Id. § 672 (f) (Supp.
IV 1986).?
Members of the Minnesota National Guard participated in
three active duty training missions in Central America in
January 1987. After the Guard returned, Governor Rudy
Perpich, the Commander in Chief of the State’s military
forces, objected to defendants’ ordering the Guard to active
duty for training in Honduras.* Because Perpich wanted to
under this subsection without the consent of the governor of
the State or Territory, Puerto Rico, or the Canal Zone, or the
commanding general of the District of Columbia National Guard,
as the case may be.
10 U.S.C. § 672(b) (emphasis added).
An individual reservist may be ordered to and retained on ac-
tive duty “at any time” with the consent of both the reservist and
the governor of his state guard:
At any time, an authority designated by the Secretary con-
cerned may order a member of a reserve component under his
jurisdiction to active duty, or retain him on active duty, with
the consent of that member. However, a member of the Army
National Guard of the United States or the Air National Guard
of the United States may not be ordered to active duty under
this subsection without the consent of the governor or other
appropriate authority of the State or Territory, Puerto Rico, the
Canal Zone, or the District of Columbia, whichever is concerned.
Id. § 672(d).
2 The Montgomery Amendment, section 522 of the Defense Authori-
zation Act for Fiscal Year 1987, provides:
The consent of a Governor described in subsections (b) and
(d) may not be withheld (in whole or in part) with regard to
active duty outside the United States, its territories, and its
possessions, because of any objection to the location. ~urpose,
type, or schedule of such active duty.
10 U.S.C. § 672(f) (Supp. IV 1986).
*The defendants, the Departments of Defense. Army, and Air
Force and their Secretaries, and the National Guard Bureau and
A-4
withhold consent to further orders, the Governor and the
State of Minnesota filed this suit. Perpich sought a declara-
tion of the governors’ constitutional authority to withhold
consent to peacetime training of the Guard outside of the
United States. Perpich asked specifically for a declaration
that the Montgomery Ame idment infringes “the Authority
of training the Militia” reserved to the States by the Consti-
tution. U.S. Const. art. I, § 8, cl. 16. Perpich also sought to
enjoin any federal order commanding members of the Minne-
sota unit of the National Guard to active duty for training
outside of the United States without Perpich’s consent.
The district court,‘ in a well-reasoned opinion, held that
the dual enlistment system, under which Guard members
enlist and serve in both the state National Guard and the
federal National Guard of the United States, was a necessary
and proper exercise of Congress’ power to raise and support
armies. Perpich v. United States Department of Defense, 666
F. Supp. 1319, 1323 (D. Minn. 1987). The court also held that
the States’ authority to train the militia did not inhibit Con-
gress’ power to provide for active duty training of the
National Guard of the United States without the governors’
consent. Perpich, 666 F. Supp. at 1325; accord Dukakis v.
United States Department of Defense, 686 F. Supp. 30, 38
(D. Mass.), aff'd 859 F.2d 1066 (Ist Cir. 1988) (per curiam),
cert. denied, 109 S. Ct. 1743 (1989). The court granted sum-
mary judgment to defendants, and Perpich appealed.
its Chief, are the individuals and entities authorized to order
reserves to active duty under § 672(b) and (d). We take judicial
notice that other members or units of the Minnesota Guard have
been or may be ordered to active duty for reserve training in
Central America.
4The Honorable Donald J. Alsop, United States District Judge for
the District of Minnesota.
A-5
A divided panel of this court reversed, holding that the
Montgomery Amendment violated the constitutional reserva-
tion of state authority to train the Militia, and that National
Guard personnel could not be ordered to active duty for train-
ing without the consent of the States unless the Congress or
the President first declared a national security emergency
or exigency. Perpich v. United States Department of Defense,
No. 87-5345, slip op. (8th Cir. Dec. 6, 1988). On January 11,
1989, this court granted rehearing en banc, thus vacating the
opinion of the panel. We now affirm the judgment of the
district court upholding the constitutionality of the Mont-
gomery Amendment.
II.
This case involves conflicting assertions of sovereignty
by the state and national governments. Perpich“' claims the
constitutional authority to withhold consent for National
Guard training outside the United States in peacetime. The
Department of Defense contends that, when Congress acts
under its constitutional power to raise and support armies,
it may authorize active duty to train reserve forces without
infringing the States’ authority over militia training. The
Department of Defense also contends that a governor’s de-
cision to withhold consent based on objections to the location
5 The States of Colorado, Maine, Massachusetts, Ohio and Vermont
appear jointly as amici curiae in support of appellants. The Na-
tional Guard Association of the United States (supported by the
states of Alabama, Delaware, Florida, Georgia, Hawaii, Illinois,
Indiana, lowa, Kansas, Kentucky, Louisiana, Maryland, Missis-
sippi, Missouri, Nevada, New Mexico, Oklahoma, Rhode Island,
South Carolina, South Dakota, Texas, Utah, Wisconsin, and the
Adjutants General Association of the United States and the En-
listed Association of the National Guard of the United States), the
Firearms Civil Rights Legal Defense Fund, and the Military
Order of the World Wars appear separately as amici curiae in
opposition to appellants.
A-6
or purpose of Guard training would infringe the national
government’s exclusive authority to conduct the national de-
fense.
Today, the militia (with a number of exceptions of no im-
portance here) consists of all able-bodied male citizens ages
17 to 45 and of female citizens who are commissioned officers
of the National Guard. 10 U.S.C. § 311(a). The militia is
divided into two classes, the organized militia and the unor-
ganized militia. Id. § 311(b). The National Guard is the
organized militia of the several States. Id. f 101(10), (12).°
The National Guard of the United States (NGUS) consists
of the members of the National Guard or organized militia
who are also cnlisted in a reserve component of the United
States Army or Air Force. Id. § 261."
6“The term ‘National Guard’ means the Army National Guard and
the Air National Guard.” Jd. § 101(9). “Army National Guard”
means:
that part of the organized militia of the several States and Ter-
ritories, Puerto Rico, the Canal Zone, and the District of Colum-
bia, active and inactive, that—
(A) is a land force;
(B) is trained, and has its officers appointed, under the six-
teenth clause of section 8, article I, of the Constitution,
(C) is organized, armed, and equipped wholly or partly at
Federal expense; and
(D) is federally recognized.
Id. § 101(10). “Air National Guard” defines a like air force. Id.
§ 101(12). Parallel definitions are found at 32 USCA. § 101(4)
(Army National Guard), (6) (Air National Guard).
In this opinion we use “the Guard” to refer generally to the
dually enlisted organized militia, adhering elsewhere to current
statutory definitions in referring to the National Guard of the
several States and the National Guard of the United States.
7“ ‘Army National Guard of the United States’ means the reserve
component of the Army all of whose members are members of
the Army National Guard.” 10 U.S.C. § 101(11). Air National
Guard of the United States’ means the reserve component of the
Air Force all of whose members are members of the Air National
Guard.” Id. § 101(13).
A-7
In 1933, Congress established the National Guard of the
United States as a component of the Army of the United
States. Act of June 15, 1933, ch. 87, § 5, 48 Stat. 155. The
National Guard of the United States consisted of the federally
recognized members and units of the National Guard of the
several States. Id. The 1933 Act created a dual enliet ment sys-
tem, id., §§ 7-11, 48 Stat. 156-57, whereby “an incoming
guardsman joined both the National Guard of his home state
and the National Guard of the United States, a reserve com-
ponent of the U.S. Army.” Johnson v. Powell, 414 F.2d 1060,
1063 (5th Cir. 1969). The President was authorized to order
any or all units or members of the National Guard of the
United States into active military service, if Congress first
declared a national emergency and authorized the use of
armed land forces in excess of the number of regular troops.
Act of June 15, 1933, ch. 87, § 15, 48 Stat. 160. In establishing
the Nationa] Guard of the United States, Congress invoked
its army clause powers. H.R. Rep. No. 141, 73rd Cong., Ist
Sess. 3-4 (1933) ; see generally Weiner, The Militia Clause of
the Constitution, 54 Harv. L. Rev. 181, 187 (1940).
In 1952, Congress enacted the legislative forerunners of 10
U.S.C. § 672(b) and (d) as part of a comprehensive strength-
ening of the armed forces’ reserve components. Armed Forces
Reserve Act of 1952, ch. 618, § 233(c), (d), 66 Stat. 481, 490.
See S. Rep. No. 1795, 82nd Cong., 2d Sess. (1952), reprinted
in 1952 U.S. Code Cong. & Admin. News 2005. The Army
National Guard of the United States and the Air National
Guard of the United States were designated as reserve com-
ponents in the Ready Reserve of the Army and Air Force,
respectively. Armed Forces Reserve Act of 1952, §§ 202,
208(c), 66 Stat. at 483-84.
Today, Congress authorizes active reserve duty for the
National Guard of the United States in a variety of circum-
stances.* The Army and Air National Guard of the United
States, established and maintained under Congress’ army
power, function as reserves in the United States Army and
Air Force “to provide trained units and qualified persons
available for active duty in the armed forces, in time of war
or national emergency and at such other times as the national
security requires.” 10 U.S.C. § 262.
Under the “Total Force” structuring of American military
forces, reserve components, including the National Guard oi
the United States, are fully integrated with regular active
forces in the national defense. See H.R. Rep. No. 1069, 94th
Cong., 2d Sess. 325, reprinted in 1976 U.S. Code Cong. &
Admin. News 1084, H.R. Rep. No. 107, 98th Cong., Ist Sess.
202 (1983). For example, the Army National Guard of the
United States provides forty-six percent of the combat units
and twenty-eight percent of the support forces of the total
Army. The Army National Guard of the United States would
provide eighteen of the twenty-eight army divisions, wholly
or in part, in the event of full mobilization. The Air National
8 In addition to the provisions of § 672(b) and (d), Reserves may
be ordered to active duty in the following circ-unstances:
reserves may be ordered to active duty “in time of war or
national emergency declared by Congress,” for up to six months
beyond the duration of the war or emergency, 10 U.S.C. ata);
active duty for up to twenty-four months is authorized if the
President declares a “national emergency,” id. § 673(a);
the President may order a reservist to active duty for up to
twenty-four months, if performance of his statutory reserve ob-
ligation has been delinquent or unsatisfactory, id. § @73a(a);
active duty for up to ninety days is authorized if the President
“determines it is necessary to augment active forces for any
operational mission,” id. § 673b(a); and
commissioned officers of the Army Nationa! Guard of the United
States may be ordered, with their consent, to active duty in the
National Guard Bureau, id. § 3496(a).
Guard of the United States provides seventy-three percent
of air defense interceptor forces, fifty-two percent of tactical
air reconnaissance, thirty-four percent of tactical air lift,
twenty-five percent of tactical fighters, seventeen percent of
aerial refueling, twenty-four percent of tactical air support,
and other forces. Supp. Jt. App. at 5 (reprinting Hearings
On Federal Authority Over National Guard Training Before
the Subcommittee on Manpower and Personnel of the Senate
Committee on Armed Service, 99th Cong., 2d Sess. (1986)
(testimony of James H. Webb, Jr.)).
Article I. section 8, clause 12 gives Congress the power
“to raise and support Armies Clause 16 reserves]
to the States respectively the Authority of Training the Militia
according to the discipline prescribed by Congress.” Minne-
sota asserts its sovereignty over the organized militia, legally
constituted as the Minnesota Units of the Army and Air Na-
tional Guards. Defendants assert their authority over enlisted
members of the National Guard of the United States. We
consider whether Congress’ qualification of the governor's
consent provisions in section 672 infringes the States’ “Au-
thority of training the Militia according to the discipline
prescribed by Congress.” The issue, simply put, is this: when
the State claims a right to control Militia training, and Con-
gress claims We're training the Army, not the Militia,’ who
wins?
The authority given to Congress by the army clause is
plenary and exclusive. Tarble’s Case, 80 U.S. (13 Wall.) 397,
408 (1872). In the Selective Draft Law Cases, 245 U.S. 366
(1918), the Court observed that “complete authority” over
the “army sphere” was “conferred in all its plenitude” to
Congress, with the exertion of that power “wisely left to
depend upon the discretion of Congress as to the arising of
A-10
the exigencies which would call it in part or in whole into
play.” 245 U.S. at 382-83. More recently, the Court has ob-
served that “the constitutional power of Congress to raise
and support armies and to make all laws necessary and proper
to that end is broad and sweeping.” United States v. O’Brien,
391 U.S. 367, 377 (1968).
The dual enlistment system, urder which Guard members
enlist and serve in both a state National Guard and the fed-
eral National Guard of the United States, is a necessary and
proper exercise of Congress’ army power. Perpich, 666 F.
Supp. at 1323. See also Dukakis v. United States Depariment
of Defense, 686 F. Supp. 30 (D. Mass.), aff'd, 859 F.2d 1066
(Ist Cir. 1988) (per curiam); Johnson v. Powell, 414 F.2d
1060, 1063 (5th Cir. 1969); Drifka v. Brainard, 294 F. Supp.
425 (W.D. Wa. 1968). Congress’ establishment of the ready
reserve and authorization of active duty, for training or other-
wise, also falls within the lawful scope of the army power, as
an exercise of congressional discretion in prescribing the
exigencies of military training and discipline. See Chappell
v. Wallace, 462 U.S. 296, 300 (1983).
Here Guard units were ordered into federal service for
training in Central America in their role as the National
Guard of the United States, a ready reserve component of the
United States Army. The statutes authorizing this federal
action are statutes grounded upon the army clause. These
actions are beyond the reach of the militia clause.
While we could well conclude at this point, the vigorous
argument of Perpich makes it proper that we further consider
the scope of the militia clause.
III.
In the Selective Draft Law Cases, the Supreme Court upheld
Congress’ authority to draft individuals into the United States
A-11
Armed Services, notwithstanding their status as National
Guard members already in the service of the United States.
The Court held that Congress’ power to conscript for the
army under its authority to raise and support armies and to
declare war was not confined to the express provisions for
calling forth the militia. The Court reasoned that the one
delegation of power to Congress (to call forth the militia) did
not circumscribe the operation of another delegated power
(to raise armies). 245 U.S. at 384.
Thus, the Supreme Court has made clear that the army
clause is not limited by the militia clause:
There was left therefore under the sway of the States
undelegated the control of the militia to the extent that
such control was not taken away by the exercise by Con-
gress of its power to raise armies. This did not diminish
the military power or curb the full potentiality of the
right to exert it but left an area of authority requiring
to be provided for (the militia area) unless and until by
the exertion of the military power of Congress that area
had been circumscribed or totally disappeared. This,
therefore, is what was dealt with by the militia provision.
* * * But because under the express regulations the power
was given to call [the Militia] for specified purposes
without exerting the army power, it cannot follow that
the latter power when exerted was not complete to the
extent of its exertion and dominant. Because the power
of Congress to raise armies was not required to be ex-
erted to its full limit but only as in the discretion of
Congress it was deemed the public interest required,
furnishes no ground for supposing that the complete
power was lost by its partial exertion. Because, moreover,
the power granted to Congress to raise armies in its
A-12
potentiality was susceptible of narrowing the area over
which the militia clause operated, affords no ground
for confounding the two areas which were distinct and
separate to the end of confusing both the powers and
thus weakening or destroying both.
245 U.S. at 388-84. Cox v. Wood, 247 U.S. 3, 6 (1918), further
explained the relationship between the two clauses :
[T]he constitutional power of Congress to compel the
military service which the assailed law commanded was
based on the following propositions: (a) That the power
of Congress to compel military service and the duty of
the citizen to render it when called for were derived
from the authority given to Congress by the Constitution
to declare war and to raise armies. (b) That those powers
were not qualified or restricted by the provisions of the
militia clause, and hence the authority in the exercise
of the war power to raise armies and use them when
raised was not subject to limitations as to use of the
militia, if any, deduced from the militia clause. And
(c) that from these principles it also follows that the
power to call for military duty under the authority to
declare war and raise armies and the duty of the citizen
to serve when called were coterminous with the constitu-
tional grant from which the authority was derived and
knew no limit deduced from a separate, and for the pur-
pose of the war power, wholly incidental, if not irrelevant
and subordinate, provision concerning the militia, found
in the Constitution.
Looking particularly to the Selective Draft Law Cases, the
district court here, as well as that in Dukakis, concluded that
the states’ authority reserved in the militia clause does not
apply to the period during which members are on active duty
as a part of the National Guard of the United States. The
A-13
Dukakis court made it clear that it did not read the Selective
Draft Law Cases as a sweeping declaration that Congress is,
in all circumstances, authorized by the army clause to bypass
the reservation of power to the states in the militia clause.
Faced with circumstances identical to those here, however,
Dukakis held:
Nevertheless, guided by the decisions in the dual-enlist-
ment cases as well as Selective Draft Law Cases, I
conclude that the reservation of power to the states over
“the Authority of training the Militia according to the
discipline prescribed by Congress,” expressed in the Mili-
tia Clause, does not override the legitimately exercised
power of Congress “[t]o raise and support Armies.“
686 F. Supp. at 37. As in Dukakis, the district court in Perpich
held that the dual enlistment system is a valid exercise of
congressional power under the army clause and the necessary
and proper clause. Because the authority to provide for
national defense is plenary, the militia clause cannot con-
strain Congress’ authority to train the Guard as it sees fit
when the Guard is operating pursuant to the army clause.
Perpich v. United States Dep’t of Defense, 666 F. Supp. 1319,
1323-24 (D. Minn. 1987). As the militia clause does not limit
Congress’ authority to train the National Guard of the United
States while it is in active service, the gubernatorial veto
is not constitutionally required. Id. at 1324. We are satisfied
that the district court was correct in this holding.
Congress’ army power is plenary and exclusive. The reserva-
tion to the States of authority to train the Militia does not
conflict with Congress’ authority to raise armies for the com-
mon defense and to control the training of federal reserve
forces. The Montgomery Amendment is a constitutional ex-
ercise of Congress’ army powers.
A-14
The judgment of the district court is affirmed.
HEANEY, Senior Circuit Judge, with whom MeMillian, Cir-
cuit Judge, joins, dissenting.
I. Introduction
With a few strokes of the word processor, the majority has
written the Militia Clause out of the United States Constitu-
tion. In so doing, it contradicts the clear intent of the founding
fathers, who believed that state control over elements of the
military was essential to a free and peaceful republic. To this
end, they gave the states a degree of power over the militia,
which they intended to be a significant element of our national
defense. The majority ignores the unambiguous language of
the Constitution, and disregards the historical construction
given to the Militia Clause and the Army Clause by the three
branches of the federal government and the states. The plain
and unassailable fact is that, until Congress tacked the Mont-
gomery Amendment on to a defense appropriations bill, it
was not responsibly asserted that Congress had the power
under the Constitution to require the National Guard to par-
ticipate in peacetime training missions without the consent
of the governor of the affected state.
The majority relies on the Selective Draft Law Cases, 245
U.S. 366 (1918), for the proposition that the Militia Clause
imposes no limits on the power of Congress to declare war
and raise armies. It neglects to note, however, that in those
cases the Supreme Court merely held that Congress could
require compulsory military service during wartime. The
Supreme Court neither held nor suggested in that or any
other case that Congress could require the National Guard
to engage in training missions during peacetime without
gubernatorial consent.
The majority places great reliance on the 1933 amendments
to the National Defense Act. In that legislation, Congress
a gk ee ee eee Renne * iam, *
9 Cee | N es es a a ee | oe! ee ee Re
A-15
determined that the Army of the United States would consist
of the regular Army, the National Guard of the United States,
the state National Guard while in the service of the United
States, the Officer Reserve Corps, the organized Reserve and
the enlisted Reserves. It adopted the amendments to alleviate
the necessity of drafting individual members of the National
Guard into the army by allowing them to be called into service
in whole units in the “event of war or other national emer-
gency so declared by Congress.” The act states in section 111
that:
When Congress shall have declared a national emergency
and shall have authorized the use of armed land forces
* * * the President may order into the active military
service of the United States, to serve therein for the
period of the war or emergency, * * * any or all units
and the members thereof of the National Guard of the
United States.
48 Stat. at 160. In the absence of war or national emergency,
Congress left state control over the militia intact.
The majority’s final argument is that the requirements of
the modern Army are such that the Defense Department must
have absolute power to order the National Guard to partici-
pate in peacetime training without gubernatorial consent. This
assertion is not supported by any facts. To the contrary, the
record shows that the efficiency of the National Guard has
not been affected at all by the refusal of one or more governors
to consent to a particular mission. Moreover, if in the future
there is a danger that non-consent would affect our national
security, a national emergency may be declared, as President
Reagan did during the recent raid on Libya. See Exec. Order
No. 12,543, reprinted in Dept. St. Bull. 37-38 (March 1986).
This is a small price to pay for compliance with the Consti-
tution.
I initially turn to the intent of the framers.
Il. The Intent of the Framers
A. The Militia Clauses
The military power of the United States is based on a
system of checks and balances. The Framers divided author-
ity over the military, not only between the coordinate branches
of the federal government, but also between the federal and
state governments.
The latter division is emphasized in several ways. First,
because of the Framers’ fear that a large standing army
would lead to military abuses by the federal government,
state militias were intended to comprise the bulk of the na-
tion’s defensive force. Second, control over these militias was
explicitly shared between the federal government and the
states. (The states were to appoint the militia’s officers and
to control the actual training of militiamen.) Third, while the
Framers did not want the states to make positive national
policy in the areas of defense or foreign relations matters.
they did intend the states to use their control over the militia
to prevent the federal government, except in circumstances
where national security was threatened, from using state
troops in military undertakings objectionable to the states
and their citizenry.
Under the Articles of Confederation, the states were
required to “keep up a well regulated and disciplined mi-
litia * * * .” U.S. Arts. of Confed. art. VI. The central govern-
ment had power to declare war and the supervisory authority
a Foreign Power, or engage in War * * .S. Const. art. I.
§ 10, cls. 1, 3.
A-17
to order the states to produce quotas of armed and trained
troops. Id., art. IX. This system proved unworkable. The states
had too much independent power to resist the requests of the
central government. The troops provided were often inad-
equately trained and equipped and thus difficult to coordinate
into a cohesive and effective force.
Thus, as the delegates assembled during the summer of
1787 to draft a more viable instrument of government, a
pressing objective was the creation of a stronger, more reli-
able armed force. This aim was widely shared. The effort to
find a specific solution, however, proved extremely divisive.
From the outset, it was agreed that the problem would not be
solved by the creation of a large, federally controlled standing
army. The Framers identified such a force with British tyran-
ny, potential oppression of states and individual citizens, and
expensive, unpopular military adventures. Thus, while the
Framers would ultimately provide for a standing army, they
would limit its power by declaring that military appropria-
tions had to be approved every two years. U.S. Const. art. I,
§ 8, cl. 12. More importantly, for the purposes of this dis-
cussion, the Framers stated their intent to have state militias
See Friedman, Conscription and the Constitution: The Original
Understanding, 67 Mich. L. Rev. 1493, 1507-1541 (1969) (Friedman).
Indeed, as delegate Edmund Rando ph noted at the Virginia rat-
ifying convention, “there was not a member of the federal con-
vention who did not feel indignation” at the idee of a standing
army. 3 J. Elliot, The Debates in the Several State Conventions
on the Adoption of the Federal Constitution 401 (1901) (Elliot).
See also Hirsch, The Militia Clauses of the Constitution and the
National Guard, 56 U. Cin. L. Rev. 919, 924 (1988) (Hirsch); Com-
ment, The Constitution and the Training of National Guard Offi-
cers: Can State Governors Prevent Uncle Sam From Sending the
Guard to Central America“, 4 J. L. & Pol. 597, 600, 601 (1988)
(authored by P. Fish) (Comment).
A-18
provide for the nation’s basic defense, with reliance on a
standing army only as a last resort.*
As a corollary to the decision to rely largely on the militia
for the nation’s defense, it was believed necessary to provide
a degree of federal control over these forces in order to
achieve military effectiveness. The Convention rapidly agreed
that the state militias would be placed under the control of
the federal government in emergency situations, such as
when insurrection or invasion was threateneu, or when the
militias were needed to enforce the laws of the country. See
US. Const. art. I, § 8, cl. 15 (Clause 15) (“Congress shall
have the power [tjo provide for calling forth the Militia
to execute the laws of the Union, suppress Insurrections and
repel Invasions * * * .”).* However, in other cases, the degree
8 As the Supreme Court noted in United States v. Miller, 307 US.
174, 179 (1939), “The sentiment of the time [of the ratification
of the Constitution] strongly disfavored standing armies; the
common view was that adequate defense of the country and laws
could be secured through the Militia—civilians primarily, soldiers
on occasion.” See also Hirsch, supra note 2, at 924. Apparently,
this view was a longstanding one, for Hirsch notes that militia
did the bulk of the fighting, often with success, in the War of
noted commentator, [Pleace was expected to be the customary
state of the new nation. America would avoid aggress.ve war abroad
and enjoy in turn ‘an insulated situation’ from the great powers
of Europe * * his placid view of foreign re ations precluded
any explicit consideration of the use of American force abroad,
except for defensive naval action W. T. Reveley, War
Powers of the President and Congress 61 (1981).
a ik — . 99
Delegate Oliver J. Elsworth of Connecticut
whole authority of the militia ought by no means to be
He thought the [general] Authority cou'd not sufficiently per-
vade the Union for such a purpose, nor could it accommodate
itself to the local genius of the people. It must be vain to ask
the States to give the Militia out of their hands.
— . —
e are come now to a most important matter, that of sword.
His opinion was that the States never would nor ought to give
up all authority over the Militia. He proposed to restrain the
general power to one fourth part at a time, which by rotation
would discipline the whole Militia.
Madison's Notes of the Federal Convention, ed in,
No. 695, 64th Cong. 2d Sess. 33 (1917) (The — *
Delegate Elbridge Gerry of Massachusetts feared that federal
control over the militia would “enslave the states” and lead to a
“system of despotism.” The Militia, supra note 6, at 31, 33.
A-20
leave the states without the means to meet their own public
needs.“
The debate between these factions was vigorous, for neither
extreme had sufficient support at the Convention for its po-
sition to prevail.“ After several months of discussion and many
days of hard-fought exchange on the floor of the Convention,
delegates, such as George Mason, began to seek a compromise
which would provide the federal government with sufficient
control over the militia to meet its defensive needs, while at
the same time assuring the states sufficient authority to check
the potential abuse of military power by the federal govern-
ment.“
On August 21, 1787, the Convention was presented with a
workable compromise. The new proposal provided the federal
government the authority [tjo make laws for organizing,
8 Madison's notes contain the following:
Mr. [Roger] Sherman [of Connecticut}, took notice that the
States might want their militia for defense [against] invasions
and insurrections, and for enforcing obedience to their laws.
Id. at 34.
® See Friedman, supra note 2, at 1512-20.
10 The power of states-rights delegates to exact significant conces-
sions from the nationalist delegates is demonstrated in the course
of the debates at the Federal Convention. Mason offered three
successive proposals to the Convention, each providing the states
more authority over the militia than the last. Mason's final
proposal sought to provide the federal government “regulatory”
authority over the militia insofar as this was necessary to estab
lish uniformity in training and arms so that the state forces
could be melded into a cohesive force when the need arose. In the
states’ interest, Mason proposed that this federal regulatory au-
thority would be limited to one-tenth part of each year, that ap
pointment of officers would be in state hands, and that the states
would be exempt from federal authority whenever they needed
to use their militia on state business. This, however, did not
satisfy the states-rights delegates, and the matter was referrec
to a central committee for resolution. The Militia, supra note 6, at
31.35.
arming, and disciplining the militia, and for governing such
part of them as may be employed in the service of the U.S.,”
while concurrently “reserving to the States respectively the
appointment of the officers, and the authority of training
the militia according to the discipline prescribed by the U.
States.”'' This compromise, with minor stylistic changes, was
ultimately approved by the Convention. U.S. Const. art. I, § 8,
cl. 16 (Clause 16).
Delegate Hamilton declared that the authority to appoint
officers was given to the states in order to secure for them
“a preponderating influence over the militia.” The Federalist
No. 29, at 185 (A. Hamilton) (J. Cooke ed. 1961) (Cooke).
Moreover, the debates indicated that the training clause was
retained in the text of the Constitution to ensure that the
power to “organize, arm, and discipline” state forces given
the federal government by the Militia Clauses did not sur-
reptitiously extend federal control over the actual training
of the militia.'*
'! The Militia, supra note 6, at 34 (emphasis added).
Clause 16 provides Congress with the power to “discipline” the
militia and reserves to the states “the Authority of training the
Militia according to the discipline prescribed by Congress.”
Amicus curiae, the National Guard Association of the United
States, argues that the term “discipline” provides a constitutional
basis for federal control over the training process.
During the debates at the Constitutional Convention, Delegate
Sherman suggested that the clause relating to training should be
deleted, because he believed it “unnecessary.” He believed that
the states would obviously retain this authority unless they spe
cifically ceded it to the federal government. The Militia, supra
note 6, at 35.
In response, Delegate Elsworth cautioned Sherman on this
point. Madison's notes contain the following
Mr. Elsworth doubted the propriety of striking out the sen-
tence. The reason assigned applies as well to the other reserva-
tion of the appointment to offices. He remarked at the same
time that the term discipline was of vast extent and might be
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Supporters of the compromise, in response, assured poten-
tial opponents that the national government would only send
the militia away from home in emergencies, such as when
invasion or rebellion was threatened, or when there was a
need to execnte the laws. See The Federaiist No. 29, Cooke
at 187. In other situations, they asserted, the states and the
people would assure that the federal government did not
abuse its control of the militia. Hamilton emphasized that
the militia were under the “preponderating influence” of the
states. /d. at 186. Thus, he continued, “What shadow of danger
can there be from men who are daily mingling with the rest of
their countrymen, and who participate with them in the
same feelings, sentiments, habits, and interests“ Id. Hamilton
concluded that, if the federal government attempted to send
state troops on such adventures, its action would be based
not on authority granted in the Constitution but rather on
“imagined intrenchments of power.” He believed that the
states and the people would not tolerate such clear violations
of the law.
marks of Luther Martin before the Maryland House of Repre
sentatives, November 20, 1787, id. at 117-118. Similar fears wee
also expressed at the Pennsylvania ratifying convention. See
Pennsylvania and the Federal Convention 598 (McMaster & Stone
ed.).
14 Specifically, Hamilton declared that if the central government
attempted such an abuse
whither would the militia, irritated by being called upon to
undertake a distant and distressing expedition for the purpose
of riveting the chains of slavery upon a part of their country-
mer direct their course, but to the seat of the tyrants who had
meditated so foolish as well as so wicked a project; to crush
them in their imagined intrenchments of power, and to make
them an example of the just vengeance of an abused and in-
censed people’
The Federalist No. 29, Cooke at 186 (emphasis added)
A-24
Madison, in like manner, declared that the authority of the
states “as coequal sovereigns,” together with the political
power of the people, would form a significant check on the
potential use of state militias for military adventures by the
federal government. He stated :
Can we believe that a government of a federal nature,
consisting of many coequal sovereigns, and particularly
having one branch chosen from among the people, would
drag the militia unnecessarily to an immense distance.
This, sir, would be unworthy of the most arbitrary
despot. They have no temptation whatever to abuse this
power; such abuse could only answer the purpose of
exciting the universal indignation of the people, and
drawing on themselves the general hatred and detesta-
tion of their country.
3 Elliot, supra note 2, at 381-82.
B. The Guarantee of Republican Government Clause
The Guarantee of Republican Government Clause pro-
vides :
The United States shall guarantee to every State in this
Union a Republican Form of Government, and shall pro-
tect each of them against Invasion; and on Application
of the Legislature, or of the Executive (when the Legis-
lature cannot be convened) against domestic Violence.
U.S. Const. art. IV, § 4.
During the ratification debates, many of the delegates to
the state conventions feared that the federal power to suppress
domestic violence in individual states provided by this clause,
together with the federal power over the militia set forth in
Clauses 15 and 16, posed a serious threat to the states in the
form of unchecked federal military power James Madison
responded forcefully to these suggestions and, in so doing,
A-25
provided clear support for the principle that reserved state
authority over the militia was designed as an explicit check on
the potential abuse of military power by the federal govern-
ment.
In the Virginia convention, Madison stated:
The authority of training the militia, and appointing
the officers, is reserved to the states. Congress ought
to have the power to establish a uniform discipline
throughout the states, and to provide for the execution
of the laws, suppress insurrections, and repel invasions:
these are the only cases wherein they can interfere with
the militia* * * .
3 Elliot, supra note 2, at 90 (emphasis added).
Several days later, Patrick Henry declared that Clauses 15
and 16, together with the Guarantee of Republican Govern-
ment Clause, gave the federal government “unbounded control
over the national strength” and “unequivocally relinquished”
the states’ control over their militias. Jd. at 422-24. In like
manner, William Grayson repeatedly argued that under the
proposed Constitution, Congress could call out the militia
whenever it desired and thus there was “no check” on federal
control over the militia. Id. at 417-18, 421.
In response, Madison reasoned that practical necessities
required dividing power over the militia between the federal
government and the states. Following from this, he continued :
If [power over the militia] must be divided, let him
[Henry] show a better manner of doing it than that which
is in the Constitution. I cannot agree with the other
honorable gentleman [Grayson], that there is no check.
There is a powerful check in that paper. The state gov-
ernments are to govern the militia when not called forth
for general national purposes; and the Congress is to
A-26
govern such part only as may be in the actual service of
the Union. Nothing can be more certain and positive
than this. It expressly empowers Congress to govern
them when in the Service of the United States. It is,
then, clear that the states govern them when they are
not.
Id. at 424 (emphasis added).
C. The Second Amendment
The second amendment to the Constitution provides:
A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear
Arms, shall not be infringed.
U.S. Const. amend. II.
This amendment was intended to reassure states-rights
advocates who feared that the power of a large federal stand-
ing army would diminish the “security of a free state.” The
second amendment guaranteed the perpetual existence of a
viable militia as a continued check on the military power of
the federal government. As the Supreme Court stated, “With
the obvious purpose to assure the continuation and render
possible the effectiveness of [the militia] the declaration and
guarantee of the Second Amendment were made. [The second
amendment] must be interpreted and applied with this in
view.” United States v. Miller, 307 U.S. at 178 (emphasis
added).
15 For further evidence supporting this view of the second amend-
ment, see 1 Annals of Congress, 749-52, 766-67 (J. Gales, ed. 1789)
1 S. Tucker, Blackstone’s Commentaries: With Notes of Reference
to the Constitution and Laws of the Federal Government of the
United States and of the Commonwealth of Virginia App. 300
(1803); 3 J. Story, Commentaries on the Constitution of the United
States §§ 1890-91 (1833); Note, Should I Stay or Should I Go: The
National Guard Dances to the Tune Called by Two Masters, 39
Case W. Res. L. Rev. 165 (1988-89) (Should I Stay or Should I Go).
A-27
D. The Framers’ View of the Interplay of the Army and
Militia Powers
The Constitution provides Congress with the power “To
Raise and support Armies * ,” U.S. Const. art. I, § 8, cl.
12, and the power “To make all Laws which shall be necessary
and proper to carry into Execution [these powers] * * * .”
Id., el. 18.**
In terms of the militia, Clause 15 provides that Congress
shall have the power:
To provide for calling forth the Militia to execute the
Laws of the Union, suppress Insurrections and repel
Invasions * * * .
Clause 16 gives Congress the further power:
To provide for organizing, arming, and disciplining the
Militia, and for governing such part of them as may be
employed in the Service of the United States, reserving
to the States respectively, the Appointment of the Of-
ficers, and the Authority of training the Militia accord-
ing to the discipline prescribed by Congress.
Id. (emphasis added).
In The Federalist No. 23, Alexander Hamilton discussed
the scope of the Constitution’s Army Clause in the following
terms:
16 There are other references to the militia in the Constitution. Art.
II. § 2, provides:
The President shall be Commander in Chief of the Army and
Navy of the United States, and of the militia of the several
states, when called into the actual service of the United States
5 „
Amendment V provides:
No person shall be held to answer for a capital or otherwise
infamous crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval forces,
or in the militia, when in actual service in time of war or public
danger
A-28
The authorities essential to the care of the common
defence are these—to raise armies—to build and equip
fleets—to prescribe rules for the government of both—
to direct their operations—to provide for their support.
These powers ought to exist without limitation: Because
it is impossible to foresee or define the extent and variety
of national exigencies, or the correspondent extent and
variety of the means which may be necessary to satisfy
them. The circumstances that endanger the safety of
nations are infinite; and for this reason no constitutional
shackles can wisely be imposed on the power to which
the care of it is committed. This power ought to be co-
extensive with all the possible combinations of such cir-
cumstances; and ought to be under the direction of the
same councils, which are appointed to preside over the
common defense.
see
Whether there ought to be a Federal Government in-
trusted with the care of the common defence, is a question
in the first instance open to discussion ; but the moment it
is decided in the affirmative, it will follow, that that gov-
ernment ought to be clothed with all the powers requisite
to the complete execution of its trust. And unless it can
be shown, that the circumstances which may affect the
public safety are reducible within certain determinate
limits; unless the contrary of this proposition can be
fairly and rationally disputed, it must be admitted, as a
necessary consequence, that there can be no limitation of
that authority which is to provide for the defence and
protection of the community, in any matter essential to
its efficacy ; that is, in any matter essential to the forma-
tion, direction or support of the NATIONAL FORCES.
The Federalist No. 23, Cooke at 147-48.
A-29
The government asserts, and the majority implicitly accepts
the view, that this passage indicates the Framers believed the
power to raise armies could supersede reserved state authority
over the militia at will. I am unable to find a word in dis-
cussions leading to the adoption of the Militia Clause that
supports this interpretation.
First, in this essay, Hamilton was writing of the “army
power.” There is no reference—of any kind—in The Fed-
eralist No. 23 to the interaction of the army power with the
militia power. There is no reference to the militia or to the
Militia Clauses at all. Second, when Hamilton discusses the
militia power in The Federalist No. 29, he directly contradicts
the interpretation the government gives The Federalist No. 23.
Strange as it may now seem, the Framers feared that if the
militia did not exist to protect state interests, the army might
be used by the federal government to opprese ne states and
their citizens. Thus, Hamilton, in The Federalist No. 29
(along with Madison in The Federalist No. 46), declared that
an essential purpose behind the states’ reserved authority over
the militia was to guard against the dangers of the federal
army.
17 See supra note 7.
18 Specifically, Hamilton declared that a strong militia obviated the
need for a potentially oppressive federal army:
[It circumstances should at any time oblige the government
to form an army of any magnitude, that army can never be
formidable to the liberties of the people, while there is a large
body of citizens little if at all inferior to them in discipline and
in the use of arms, who stand ready to defend their own rights
and those of their fellow citizens. This appears to me the only
substitute that can be devised for a standing army; the best
possible security against it, if it should exist.
The Federalist No. 29, Cooke at 184-85.
Next, responding to the argument that the Constitution's Militia
Clauses provided the federal government the power to oppress
the states with their own militias, Hamilton continued:
r nn
Hamilton could not have meant that the Army Clause has
the power to supersede the reserved state authority over the
militia at will. If the federal government could use the army
power at will to make the militia a federal force under its
plenary control, then the Militia Clauses could not serve their
intended purpose to protect the states against potential op-
pression by the federal army.
Given the basic nature of this contradiction (and the fact
that The Federalist No. 23 does not even discuss the militia),
it is likely that Hamilton was simply writing about the broad
authority of the army power to serve the national defense,
without reference to the militia power.
There is something so far fetched and so extravagant in the
idea of danger from the militia, that one is at a loss to treat
it with gravity or with raillery * * * What reasonable cause of
apprehension can be inferred from a power in the Union to
prescribe regulations for the militia, and to command its ser-
vices when necessary; while the particular States are to have
the sole and exclusive appointment of the officers? If it were
possible seriously to indulge a jealousy of the militia upon any
conceivable establishment under the Federal Government, the
circumstances of the officers being in the appointment of the
States ought at once to extinguish it. There can be no doubt
that this circumstance will always secure to them a preponder-
ating influence over the militia.
Id. at 185 (emphasis added).
In a similar vein, Madison wrote:
Let a regular army, fully equal to the resources of the country
be formed; and let it be entirely at the devotion of the Federal
Government; still it would not be going too far to say, that the
State Governments with the people on their side would be able
to repel the danger * * To these [a standing army] would
be opposed a militia amounting to near half a million of citizens
with arms in their hands, officered by men chosen from among
themselves, fighting for their common liberties, and united and
conducted by governments possessing their affections and con-
fidence. It may well be doubted whether a militia thus circum.
stanced could ever be conquered by such a proportion of regular
troops.
The Federalist No. 46, Cooke at 321 (emphasis added).
Alternatively, The Federalist Nos. 23 and 29 can be read
together to allow the army power to supersede the militia
power in more tightly confined circumstances. Hamilton, in
The Federalist No. 28, speaks of the broad and unhindered
sweep of the army power very clearly in the context of un-
foreseeable “national exigencies,” or, phrased in other ways,
in terms of the “circumstances that endanger the safety of
nations,” or “circumstances which may affect the public safe-
ty. Clearl;, these phrases are significant to Hamilton, and
by reading such a “national exigency” as a necessary require-
ment before the Army Clause can supersede state authority
over the militia in peacetime, the seemingly contradictory
messages of The Federalist No. 23 and The Federalist Nos.
29 and 46 are harmonized.
If the authority of the Army Clause to supersede the res-
ervation of state authority in the Militia Clauses is limited
to “national exigencies” or “circumstances that endanger the
safety of the nation,” federal power over the militia can only
“trump” the state power when the whole union, or the national
interest, is in some way threatened. If such a threat did not
exist, the states would then be protected from the oppressive
exercise of federal authority by the Militia Clauses.
Certain powers, such as reserved state authority over the
militia, were enumerated in the Constitution in order to be
insulated from uncontrolled and potentially irresponsible
short-term political reaction. Such powers represented funda-
mental structural decisions by the Framers, based on their
view of political society. They realized that, unless insulated,
these powers could be eliminated in the heat of the moment
by ill-considered political reactions. See The Federalist No. 10
(J. Madison).
III. The Text of the Constitution
The plain language of Article I. Section 8, Clause 16 of the
Constitution “reserv[es] to the States respectively * * * the
Authority of Training the Militia * * * .” This is an unam-
biguous command in the text of the Constitution which we
cannot ignore. The second amendment to the Constitution
provides that, “A well regulated militia, being necessary to
the security of a free state, the right of the people to keep
and bear arms is not infringed.” This amendment mandated
the states to keep troops as a check on the power of the fed-
eral government as a matter of constitutional law. United
States v. Miller, 307 U.S. at 178; see also, Should I Stay or
Should I Go, supra note 15 at 176, 208. When read together
with Clause 16, the second amendment clearly opposes the
power of Congress to raise armies at will. The clauses, how-
ever, can be readily harmonized if we accept the concept that
the power of Congress over the National Guard is supreme
only in times of war or a declared national emergency.
IV. The Decided Cases
A. The Supreme Court
The majority reads the Selective Draft Law Cases, supra,
and Coz v. Wood, 247 U.S. 3 (1918), to permit, if not to
require, its holding. I find no support for the majority's view
in these cases.
The Selective Draft Law of May 18, 1917, ch. 15, 40 Stat.
76, was passed shortly after Congress had declared war on
Germany. The act unambiguously recites that the country was
faced with an “emergency, which demands the raising of
troops in addition to those now available.” 40 Stat. at 76.'*
The draft was specified to be in accordance with Section 111 of
the National Defense Act of 1916. That section read as follows:
When Congress shall have authorized the use of the armed
land forces of the United States, for any purpose requiring the
use of troops in excess of those of the Regular Army, the
President may, * * * draft into the military service of the United
States, to serve therein for the period of the war unless sooner
In the Selective Draft Law Cases, the Court concluded :
bility of parting with their organized militia when a national
has In the Civil War the States parted
with their active militia in raising their quotas for the
|
with Spain the Vo.unteer Army
manner. Of course, in contemplat.on
of law the militia has been taken not as militia, nor as militia
organizations, but as individuais owing the Nation allegiance
and service. Such a long<ontinued course of governmental
i
f
Fe
country's cause in time of wer
Selective Draft Law Cases, Brief for the United States at 5640
(emphasis added
A-34
gress power “to declare war; . . . to raise and support
armies, but no appropriation of money to that use shall
be for a longer term than two years; . to make rules
for the government and regulation of the land and naval
forces.” Article I. f 8. And of course the powers con-
ferred by these provisions like all other powers given
carry with them as provided by the Constitution the
authority “to make all laws which shall be necessary and
proper for carrying into execution the foregoing powers.”
Article I, § 8.
245 U.S. at 377 (emphasis added).
The Supreme Court held that the conscription statute passed
under the powers to declare war and to raise and support
armies, together with all the other military powers available
to the federal government, gave the federal government
authority to conscript male citizens. Further, it heid that
this authority was not limited by the states’ reserved author-
ity over the militia. The Court’s holding was succinctly sum-
marized four months later in another opinion, on a closely
related issue. Chief Justice White wrote:
[On the face of the opinion delivered [in the Selective
Draft Law Cases] the constitutional power of Congress
to compel military service * * * was based on the following
propositions: (a) That the power of Congress to compel
military service and the duty of the citizen to render
it when called for were derived from the authority given
to Congress by the Constitution to declare war and to
raise armies. (b) That those powers were not qualified
or restricted by the provisions of the militia clause, and
hence the authority in the exercise of the war power to
raise armies and use them when raised was not subject
to limitations as to use of the militia, if any, deduced
A-35
from the militia clause. And (c) that from these princi-
ples it also follows that the power to call for military
duty under the authority to declare war and raise armies,
and the duty of the citizen to serve when called were
coterminous with the constitutional grant from which
the authority was derived and knew no limit deduced
from a separate, and for the purpose of the war power,
wholly incidental if not irrelevant and subordinate, pro-
vision concerning the militia, ound in the Constitution.
Coz v. Wood, 247 U.S. at 6 (emphasis added).
Neither of the cases supports the majority's opinion. The
Court simply declared that in war the federal government can
use all its military powers combined to supersede the states’
reserved authority over the militia.
The Selective Draft Law Cases are also distinguishable
because the conscription statute at issue drafted the members
of the National Guard (militia) into the army as ci‘izens, not
as militiamen. For this reason, the government argued that
the power to draft citizens in no way infringed upon the re-
served rights of the states over the militia, and thus the Cour.
did not have to reach the militia clause arguments. See Selec-
tive Draft Law Cases, 62 L.Ed. 349, 352 (1918) (summary of
oral argument). See also Friedman, supra note 2, at 1496 and
Comment, supra note 2, at 624 & n.157.*°
The language in the Selective Draft Law Cases concerning
the interplay of the army and militia powers begins with the
2° But see Thoughts on the Conscription Law of the United States,
in The Military Draft: Selected Readings on the Constitution 207
18 (M. Andresen ed. 1982) (draft opinion fownd in the papers of
Chief Justice Taney finding that federal conscription law directed
toward citizens, as opposed to militiamen, implicated (and in fact
violated) the Militia Clauses of the Constitution); Freeman, The
Constitutionality of Peacetime Conscription, 31 Va IL. Rev. #0
(1944).
A-36
Court noting that an improved understanding of the scope
of these provisions can be gained by comparing the powers
of the federal government before and after the Constitution
was ratified. Under the Articles of Confederation, Congress
had the right “to call on the states for forces.” 245 U.S. at
382. Correspondingly, the states had an inescapable duty to
furnish troops when called. This “embraced the complete
power of government over the subject.” Id. The Court anal-
ogized this power to the authority to raise armies under the
Constitution.
Following immediately on the heels of this description of
“the army sphere,” however, the Court explicitly cautioned
that this power was not controlling over the states. Rather,
its use was confined to those “exigencies” in which Congress,
in its discretion, saw fit to use the power."
The Court stated :
But the duty of exerting the power thus conferred in all
its plentitude was not made at once obligatory but was
wisely left to depend upon the discretion of Congress as
to the arising of the exigencies which would call it in
part or in whole into play.
Id. at 382-83 (emphasis added).
The Court then continued its comparison of the Articles of
Confederation to the Constitution. Under the Articles, the
Court declared, there was an open area of authority that, in
the absence of the proper exercise of the power to raise armies,
left the states with control over the militia. This control was,
in the Court's view, analogous to the authority reserved to the
states under the militia provisions of the Constitution.
2! Chief Justice White, four months later, in Cor, clarified that his
holding in the Selective Draft Law Cases was based on the au
thority of the war and army powers exercised together
A-37
The Court next explained that the Militia Clauses also pro-
vided further positive powers to Congress. The Court noted
that Clause 15 allowed Congress to make use of the militia
when insurrection or invasion was threatened and to execute
the laws. Clause 16 also provided Congress with some power
over the organization and training of state militias. The Court
carefully declared, however, that the Militia Clause left the
specifie “carrying out of” (te, the specific authority over)
the organization and training of the militia to the states. Id.
at 383 (emphasis added).
The Court found that these “fine-tuned” powers given to
Congress in the Militia Clauses were created to “diminish”
or limit the use of the awesome army power—and its atten-
dant dominance over state authority—to those situations in
which the exercise of such vast power was strictly necessary.
Id. at 383.
In concluding, the Court emphasized the care required in
interpreting the conflicting authority of the army and militia
provisions of the Constitution. It was true, said the Court,
that the Militia Clauses provided Congress other ways, in
addition to the Army Clause, to exert power over the militia.
These other grants of positive authority, however, did not
diminish the strength of the army power which, once properly
exerted—or in the Court's words, exerted “only as in the
discretion of Congress it was deemed the public interest re-
quired” —was “complete and dominant.” Id. at 383-84 (em-
phasis added).
Following from this, the Court found that the army power,
when properly exercised, could “potentially” narrow the pow-
er of the Militia Clauses. There was no suggestion, however,
that, absent an exigency, the integrity of the Militia Clauses
could be compromised. The Court carefully emphasized that
the army and militia powers were “distinct and separate,”
that both comprised meaningful areas of authority, and that
neither area was to be “weakened or destroyed” by construing
the other power too broadly. Id. at 384.**
B. The Lower Federal Courts
The majority cites two cases, Johnson v. Powell, 414 F.2d
1060 (Sch Cir. 1969), and Drifka v. Brainard, 294 F. Supp.
425 (W. D. Wash. 1968), in support of its view that the Mont-
gomery Amendment is constitutional as a necessary and prop-
er exercise of Congress’ army power. I doubt the validity of
this view. Johnson and Drifka both arose during the Vietnam
War where there was a declaration of national exigency.
In Johnson, Nationa] Guardsmen challenged the constitu-
tionality of Pub. L. No. 89-687, 80 Stat. 981 (1966). This
statute, enacted in the midst of the Vietnam War, provided
the President with temporary authority, based upon a deter-
mination of presidential necessity, to order a member of the
National Guard of the United States to active duty for up to
24 months.
The Guardsmen alleged. inter aia, that the statute violated
Clause 15. Specifically, they asserted that, because the duty
did not fall within the powers granted Congress in that clause
(Le, the duty did not involve insurrection, invasion, or the
need to execute the laws), the statute was unconstitutional.
72 The Supreme Court has heid that other constitutional provisions
operate as a limit on Congress in military affairs. See Rostker v
Goldberg, 453 US. 57 (1981) (army power must be used in manner
consistent with the equal protection guarantees of the fifth
amendment Gillette v United States, 1 US. 437 (1971) (army
power must accommodate the establishment clause of the first
amendment); United States O'Brien, 391 US. 367 (1968) (army
power must accommodate first amendment free speech) Further.
more. the Supreme Court specifically stated that Congress’ power
"to declare war and to support armies is not plenary, Hemilten +
Kentucky Distilleries & Warehouse Co. 151 US. 146, 156 (1999).
but is subject to other applicable constitutional limitat.ons.
A-39
The Court responded to this claim by stating that Pub. L.
No. 89-687 was not enacted under the authority of Clause 15,
but rather under the dual enlistment system which was based
on the army power and the Necessary and Proper Clause.
Congress, two years prior to the enactment of Pub. L. No.
89-687, had declared the presence of a “national exigency”
in the “Gulf of Tonkin Resolution.” See Act of August 10,
1964, Pub. L. No. 88-408, 78 Stat. 384 (1964). In this resolu-
tion, Congress specifically found that the “deliberate and
repeated” attacks on United States naval vessels in Southeast
Asian waters “created a serious threat to international peace.”
It further declared that the “United States regards as vital
to its national interest * * * the maintenance of international
peace and security in southeast Asia.” Therefore, the Congress
declared its readiness, [el onsonant with the Constitution
of the United States * * * , as the President determines, to
take all necessary steps, including the use of armed force, to
assist any member or protocol state of the Southeast Asia
Collective Defense Treaty requesting assistance in defense
of its freedom.” Jd. This statement of exigency, together with
the exercise of the congressional powers to raise armies and
to make laws under the Necessary and Proper Clause, provides
a constitutional basis for Pub. L. No. 89-687.“
The Johnson court indirectly acknowledged that Pub. L.
No. 89-687 was motivated by a threat to the national security.
The Court stated that the “purpose” of the law was to make
National Guard troops available to the federal government
when the “nationdl security” was threatened. 414 F.2d at
1063-64.
23 Drifka adopted a rationale similar to that stated in Johnson. 294
F. Supp. at 427-28.
A-40
V. The National Erigency Requirement
Like the Supreme Court in the Selective Draft Law Cases,
this Court is now faced with the interplay of two constitu-
tional provisions which have the potential to conflict in their
exercise. Both have power and purpose, and thus in harmo-
nizing these provisions, we must attempt to preserve as much
of the authority of each as we sensibly can.
If the federal government can make the militia a federal
force at will, the militia’s intended purpose as a check on
federal military power will be frustrated. Moreover, the
24 The United States District Court for the District of Massachusetts
similarly found that the government's position concerning the
power of the Army Clause leads to the “abolition” of the militia
by leaving the Militia Clauses of the Constitution without prac-
tical application. Specifically, the court stated:
Counsel for the defendants conceded at oral argument that [its]
conception of the dual-enlistment system makes the militia de-
pendent on Congress for its existence because, in a practical
sense at least, the militia exists only when Congress does not
want or need it as a part of the Army. Under such a dual-
enlistment concept, pushed to the logical limit, Congress could
at any time order the entire militia into active duty year-round,
thus abolishing the militia and leaving the Militia Clause with-
out practical application. A plain reading of the Constitution
support plaintiffs’ contention that Congress cannot “abolish”
the militia by transforming it into a part of the Army. See U.S.
Const. amend. II (“A well regulated militia being necessary to
the security of a free State); Militia Clause, supra, (“reserv-
ing to the States respectively . the Authority of Training the
Militia according to the discipline prescribed by Congress).
Dukakis v. Dept. of Defense, 686 F. Supp. 30, 36 (D. Mass.), aff'd,
859 F.2d 1066 (ist Cir.), cert. denied, 109 S. Ct. 1743 (1988).
In order to avoid these problems, the court departed from the
government's position and distinguished the Selective Draft Law
Cases from the present controversy concerning the Montgomery
Amendment by noting that the Selective Draft Law controversy
arose in wartime. Thus, according to the court, it followed that
the “present controversy presents the issue of accommodation be-
tween the Armies Clause and the Militia C.ause in a context less
.
A-41
Framers’ intent—particularly in light of the structure of the
Militia Clauses—cannot be fairly read to support plenary fed-
eral control of the militia, absent a threat to the national
security.
The majority declares that, under the Army Clause, the
federal government can make the militia a federal force at
will. It says that it can do this because the militia has been
changed into: (1) the National Guard, and (2) the National
Guard of the United States (NGUS). Thus, the majority
argues that when the militia is ordered to put on its NGUS
hat, it is available to the federal government any time the
federal government wants, to do anything the federal govern-
ment desires.
This cannot be right.
A power that the Constitution explicitly enumerates as a
state power—a state power designed to check federal power
and to protect the states from the exertion of federal power—
cannot through “a mere form of words” be transformed into
an unchecked instrumentality of federal power.
Based on these considerations, I conclude, as did the Court
in the Selective Draft Law Cases, that before the federal
compelling than that of Selective Draft Law Cases, for priority of
the Armies Clause.” Id.
While all this appears clear—and consistent with this dissent—
the Dukakis court concluded: “Nevertheless, guided by the deci-
sions in the dual-enlistment cases as well as that of Selective Draft
Law Cases,” the states’ reserved authority in the Militia Clauses
“does not override the legitimately exercised power of Congress
‘{tlo raise and support Armies. Jd. (emphasis added).
The Dukakis court acknowledged that if the Militia Clauses are
to have any continuing meaning, there must be a line of reserved
state authority over which the federal government cannot cross.
However, the court neither explained where that line is nor why
it believed the Montgomery Amendment falls on the permissibie
side of that line.
=
A-42
government can exercise its army power to supersede the re-
served state authority over the militia, its actions must be
motivated by a “national exigency.”
Implied in this requirement, to assure its observance, is
the necessity of an affirmative declaration. Thus, before the
legislative or executive branch can use the authority of the
Army Clause to overcome reserved state authority over the
National Guard, Congress or the President must first affir-
matively assert the existence of a national exigency or of a
specific threat to the national security.
The power to determine the existence of such circumstances
belongs only to Congress or the President. Once this power is
exercised, the substance of the determination cannot be chal-
lenged by the states or by individual National Guard members
sent into federal service. See Martin v. Mott, 25 U.S. (12
Wheat.) 19, 30 (1827). Such a challenge would involve a
central “political question,” see Baker v. Carr, 369 U.S. 186,
213, 217 (1962), and would hence not be justiciable.
It might be argued that the necessity of an affirmative
declaration is thus meaningless. I believe, however, it is a
serious undertaking for the President or for Congress to de-
clare a national emergency. Such a declaration alerts the
coordinate branches of government, the states, the citizens
of the nation, and the nations of the world that the United
States believes its interests are threatened and that it is pre-
pared to take appropriate steps. It may at times be politically
distasteful to an incumbent administration or to Congress
to declare a national emergency, but ours is an open society
and experience teaches that in matters of great import,
support of the citizenry is essential.
VI. From the Militia to the National Guard
Over the last eighty-five years, the federal government has
gradually assumed greater control over the state militias.
A-43
Congress has, however, consistently recognized the consti-
tutional limits on its power to call the state National Guards
into active service for training or operational missions in
peacetime without gubernatorial consent. The Montgomery
Amendment represents the first congressional departure from
this recognition.
A. The Dick Act of 1908
After the poor performance of state militia in the Spanish-
American War, Congress began to use its Clause 16 power to
“organize, arm and discipline” the militia, together with
federal funds to improve the organization and coordinate the
training of state militias. Thus, after 111 years, during which
the national militia laws had been relatively unchanged,**
Congress in 1903 passed the “Dick Act.” Act of January 21,
1908, ch. 196, 32 Stat. 775. This law renamed the organized
militias of the states the “National Guard” and provided
federal funds to equip and to train them with regular army
officers. This aid was conditional, however, on compliance
with federal standards for training and organization.
The Dick Act carefully observed basic state authority over
the National Guard. In this light, the War Department could
not issue additional arms or assign regular army officers to
state National Guard units until the state governor explicitly
requested such assistance. 32 Stat. at 777. Similarly, National
Guard units could not engage in joint encampments, man-
euvers or field instruction with regular troops during summer
training unless the governor made a forma! request for such
training. 32 Stat at 777-78.
25 The Uniform Militia Act of 1792, ch. 33, 1 Stat. 271, remained the
primary law regulating the militia until 1903. For congressional
activity between 1792 and 1903, see Should I Stay or Should I Go,
supra note 15 at 179-185.
A-44
B. The National Defense Act of 1916
The National Defense Act of 1916, ch. 134, 39 Stat. 166
(the 1916 Act), continued the use of federal funds as an in-
ducement to further federal “organizational” control over state
National Guards. The 1916 Act also recognized the constitu-
tional limits on federal control over state National Guard
forces by providing that “nothing contained in this Act shall
be construed as limiting the rights of the States and Territories
in the use of the National Guard within their respective bor-
ders in time of peace * * * .” 39 Stat. at 198 (codified at 32
U.S.C. § 109(b)). It also declared that sentences of dismissal
or dishonorable discharge from the National Guard must be
approved by the governors of the respective states. 39 Stat.
at 209.
C. The National Defense Act Amendments of 1933
At the outset of World War I, it was believed that the
Militia Clauses might prevent National Guard units from
being called into federal service outside of the categories listed
in Clause 15. Thus, volunteer units with high morale, which
had trained together and were in a relatively high state of
readiness, were disbanded when the war began. The govern-
ment then drafted the individual members of these units into
the Army, where they were reassigned to new units. This
process not only hurt National Guard morale but was viewed
as bad federal defense policy, given that trained units are
generally in short supply at the beginning of crisis periods.
The 1933 amendments were primarily designed to remedy
this problem by allowing the federal government to mobilize
National Guard units intact “so as to eliminate the delay
incident to draft.” S. Rep. No. 135, 73rd Cong., Ist Sess. 2
(1933) ; see also H.R. Rep. No. 141, Tard Cong., Ist Sess. 2
(1933). To accomplish this objective, Congress created the
A-45
“dual enlistment” concept. Dual enlistment required the mem-
bers of state Nationa) Guards to be concurrent members in a
new entity called the National Guard of the United States
(NGUS). The NGUS was a reserve component of the United
States Army created under the authority of the Army Clause.
Based on this dual status, the 1933 amendments gave the
President power to order the National Guard in its army
status as the NGUS into federal service, but only in the event
of a “national emergency” declared by Congress. In this light,
the accompanying Senate report states that the “control, offi-
cering, and discipline [of the National Guard] except when
ordered out pursuant to an emergency declared by Congress,
{is left] with the respective States, just as at present. The
relation of the Guard to the respective states during peace
is in nowise affected or altered.” S. Rep. No. 135 at 2. Accord-
ing to the House report, the 1933 amendments “reserv(ed] to
the States their right to control the Nationa] Guard or the
Organized Militia absolutely under the militia clause of the
Constitution in time of peace.” H.R. Rep. No. 141 at 5 (empha-
sis added).
Thus, contrary to the majority’s view, the 1933 amendments
did not change the degree of federal control over the National
Guard but merely codified the existence of preeminent federal
power in a national emergency or exigency. Acknowledging
the limited change in federal control over the Guard affected
by the 1933 changes, one federal district court has declared
that the “National Guard, while something of a hybrid under
both state and federal control, is basically a state organiza-
tion.” Mela v. Callaway, 378 F. Supp. 25, 28 (S.D.N.Y. 1974) ;
see also Maryland er rel. Levin v. United States, 381 U.S. 41,
46, vacated on other grounds, 382 U.S. 159 (1965) (“The Na-
tional Guard is the modern Militia reserved to the States by
Art. I, § 8, cl. 15, 16, of the Constitution.)
A-46
The 1933 amendments recognized that federal authority
over the National Guard in a national emergency is pre-
eminent. In such a narrow circumstance, state authority is
superseded, and thus there are no state limitations to avoid.
The dua! enlistment system was not a clever ploy by Congress
to avoid at will the state powers embodied in the Militia
Clauses. Rather, it was simply the statutory recognition of
the constitutional principle tha. federal authority was su-
preme over the Nationa] Guard in national emergencies.
D. The Armed Forces Reserve Act of 1952
The declared purpose of the Armed Forces Reserve Act of
1952, ch. 608, 66 Stat. 481 (the 1952 Act), was to bring to-
gether in one statute the laws relating to the reserve com-
ponents of the various branches of the armed forces. See
Should I Stay or Should I Go, supra note 15, at 193. Section
233 of the 1952 Act for the first time relied on the Army
Clause powers of the Constitution to bring national guards-
men into federal service for training. The 1952 Act, however,
specifically required that the federal authority requesting
National Guard participation first obtain the consent of the
relevant state governor.
Relevant to the present case are two provisions of the 1952
Act, now codified at 10 U.S.C. § 672(b) and (d). These sub-
sections provide the federal government with authority to
call state guardsmen to active duty with the consent of their
state governors. Federal training of state National Guard
troops is done under the authority of these provisions. The
provisions state
(b) At any time, an authority designated by the Secretary
concerned may, without the consent of the persons af-
fected, order any unit, and any member assigned to a
unit organized to serve as a unit, in an active status in
— . —— j
47
a reserve component under the jurisdiction of that Sec-
retary to active duty for not more than 15 days a year.
However, units and members of the Army National Guard
of the United States or the Air National Guard of the
United States moy not be ordered to active duty under
this subsection without the consent of the governor of
the State
(d) At any time, an authority designated by the Secretary
concerned may order a member of a reserve component
under his jurisdiction to active duty, or retain him on
active duty, with the consent of that member. However,
a member of the Army National Guard of the United
States or the Air National Guard of the United States
may not be ordered to active duty under this subsection
without the consert of the governor or other apvropriate
authority of the State
10 U.S.C. §672 (emphasis added).
If the gubernatorial consent requirement in these statutes
were to be eliminated, the federal government would have
plenary power to put the National Guard under its control
at any time and for any purpose. Such a state of affairs
would clearly frustrate the reserved state authority over the
militia contemplated by the Constitution, particularly by the
Militia Training Clause.
In this light, the United States Military Court of Appeals
has found that the gubernatoria! consent requirement of 10
U.S.C. § 672(d) “has constitutional underpinnings in Art. I.
§ 8 of the Constitution of the United States.” United States
v. Peel, 4 MJ. 28, 29 (C.M.A. 1977) (footnote omitted) ac-
cord United States v. Self, 18 MJ. 132, 136 (C. MA. 1982);
United States v. Hudson, 56 MJ. 413, 418 (C.M.A. 1978). More-
over, although we owe no special deference to congressional!
judgments regarding constitutional questions, the available
clauses of the Federal Constitution, and notably article |, sec-
tion 8 clause 16 thereof, which reserves to the states the
for the State of Georgia, complained that the proposed bill “w.1i
delegate to the Pentagon the constitutional rights and powers
imposed in the governors of the respective States to command
their militia.” Armed Forces Reserve Act: Hearings on H.R. 5426
Before the Senate Subcommittee on Armed Services, 82d Cong.
2d Sess. 312 (1962). The Adjutant General of Illinois, Leo M.
A-49
E. The Montgomery Amendment of 1986.
In 1986, the Governor of Maine refused to allow 48 members
of the Maine National Guard to participate in a training mis-
sion in Honduras. After several other governors threatened
to follow suit, a Senate subcommittee began to explore the
question of whether the gubernatorial] consent provisions of
the 1952 Act should be abolished. See Hearings on Federal
Authority Over National Guard Training Before the Sub-
committee on Manpower & Personnel of the Senate Committee
on Armed Services, 99th Cong., 2d Sess. (1986) (stenographic
transcript) (1986 Senate Hearings). The hearings were held
with short notice, and many who wished to testify against
the proposal were unable to do so. 1986 Senate Hearings,
supra, at 8. Among the governors objecting to this legislation
were Gov. John H. Sununu, now President Bush's Chief of
Staff, Gov. Thomas H. Kean (New Jersey), Gov. Mark White
(Texas), Gov. Harry Hughes (Maryland), Gov. Victor Atiyeh
(Oregon), Gov. James R. Thompson (Illinois), Gov. George
Nigh (Oklahoma), Gov. Bill Allain (Mississippi), Gov. Nor-
man H. Bangerter (Utah), Gov. Ed. Herschler (Wyoming),
Gov. Richard D. Lamm (Colorado), Gov. Mario Cuomo (New
Boyle, enclosed his prepared remarks protesting a prior proposal
to “federalize” the National Guard. I support the wisdom and
farsightedness of our forefathers and the framers of the Constitu-
tion when they wrote the militia clause of the Constitution,”
Boyle wrote. “The National Guard system comprising as it does—
citizen soldiers—has always been a bulwark against the concen.
tration of military power in our Federal Government.” 1d at 310.
Thus, it appears that to counter the perceived “federalization”
of the Guard, the Nationa! Guard Association proposed, among
other things, an amendment requiring the consent of the governor
of the State concerned before National Guard un ts could be called
to active duty outside of national emergencies or the contingen.
cles noted in Clause 15. Congress listened and enacted the guber
natorial consent provisions, 10 U.S.C. § 672(b) and (d)
ginia), Cov. James J. Blanchard (Michigan), and Gov. Juan
Luis (Virgin Islands).
Former Gov. Sununu stated:
I want to go on record as opposed to * * * any legislative
attempt to remove the authority or control of the National
Guard from the states. This legislative initiative is di-
rectly contrary to the language and intent of the U.S.
Constitution.
The National Guard, for over 200 years, has responded
wherever and whenever our nation called. With guber-
natortal control of the National Guard in peacetime, the
nation has always had full confidence in the availability
of this reserve force for war or national emergency. There
is no evidence * * * that there is any less commitment
to that responsibility today. The President will always
have the prerogative, by federal statute, to call the Na-
tional Guard in time of war or national emergency.
Comments of Governor John H. Sununu, entered into rec-
ord of Hearings on Federal Authority Over National Guard
Training Before the Subcommittee on Manpower and Per-
sonnel of the Senate Committee on Armed Services, 99th
Cong. 2d Seas. (July 15, 1986).
The Department of Defense had counseled caution and
hoped the crisis would fade over time. In the end, the sub-
committee took no action.
tt See Kester State Governors and the Fedrral National Guard 11
Harv. J. L. & Pub. Policy 177, 178 (1088)
A-51
One month later, Rep. G.V. “Sonny” Montgomery of Missis-
sippi submitted an amendment to the proposed Defense
Authorization Act of 1987 that provided that a governor
could not withhold his consent with regard to active duty
outside the United States because of objections to the loca-
tien, purpose or scheduling of the mission. See Cong. Rec.
H6267 (daily ed. Aug. 14, 1986). Because the proposal! took the
form of an amendment to the defense bill, debate on it in
the House of Representatives was limited to a total of ten
minutes. Moreover, there were no hearings on the amend-
ment before it reached the floor for a vote. In response, many
representatives noted the fundamental impropriety in making
such a great potential change in defense policy—if not in
the constitutional balance of power—without the benefit of
hearings, id. at H6262-68 (remarks of Reps. Edwards and
Schroeder), and with such limited debate The consideration
of the bill was further overshadowed by ominous recurring
warnings to the representatives that if they did not act quickly
to eliminate the gubernatorial consent requirement, the fed-
28 With regard to the limited debate concerning the Montgomery
Amendment, Rep Dyson stated
Mr. Chairman, the Guard has no greater friend than the Gentie
man from Mississippi (Mr. Montgomery!. but | think this is a
bed idea. We have not had enough time to look inte this; 10
minutes per amendment is not enough time to fully understand
a proposal as important and as far reaching as this amendment
Cong. Rec. H6266 (daily ed. Aug 14, 1986)
Rep Schroeder stated
Basically, whether y ° agree or disagree, | think we all agree
that if [the Montgomery Amendment) is unconstitutional ac
cording to many constitutional scholars. and if we have never
had hearings, and if it has been functioning this way for over
200 years, why in the word the rush to put this in with a 10
m nute dehate on the House floor’
1 think that is playing too fast and loose
id at H6267
eral government would eliminate funding to their state Na-
tional Guards
In the end, calls for deliberation and caution did not prevail,
and the full House, after 10 minutes of debate, approved the
For example, Rep. Montgomery warned the members of the
If we do not adopt this amendment, and as | have srid cartier.
the National Guard is Gead in the water, you can forget about
it You Governors are going to lose all your equipment. you are
going to lose « lot of payroll, so you hed better support this
amendment and let the Guard keep going
Cong. Rec. supre note 28, at HG2S7
Moreover, on July 15, 1988, James H. Weed, Jr. told « Senate
Armed Services Subcommittee that an alternative to retaining the
sourcing * * * to these unite thet are able to participate in ‘Teal
work? training missions * * *” Prepared statement of Assistant
Secretary of Defense for Reserve Affairs. see 1986 Senate Heer.
ings, supra, at 5-14 Tem days later, on July 35, 1988, the House
that refused to participate in overseas training assignments MR
Rep. No. THR, 96th Cong. 2¢ Seas 176 (1088)
8° Specificaily. the conference report stated
The conferees reiterate that under this provision, the
still will have the authority to beck the training if
thinks (he guardsmen are needed at home for local
The conferees intend that nothing about the words Wetten.
purpese, type, and echedule” should constrain & governor in
according appropriate priority to a state or local emergency
such as a flood of other natural disaster
Legislative Histery of Pub L. No G)681, Sth Cong. 20 Seae 475
198). reprinted in 1988 US Code Cong & Admin. News 6905,
is
A-53
The effect of this amendment is to give the Defense De-
partment unfettered authority over the state National Guard
units. It permits the Department to call out the individual
National Guard units for training or operational missions in
peacetime and to do so in the face of objections on the part of
the governor of the affected state. I believe that the Mont-
gomery Amendment contravenes the intent of the Framers.
It allows the federal government to make state National
Guards part of a federal force in peacetime at will. It elimi-
nates all check on federal military power by the states and
frustrates state authority to resist operational and training
missions of the National Guard when there is no threat to
the national gecurity and when no emergency has been de-
clared. From time to time over the past 200 years, the Con-
gress of the United States has taken steps to improve the
effectiveness of the National Guard. Until 1986, however, it
always recognized the restraint of the Militia Clauses of the
United States Constitution.
Not only is the Montgomery Amendment contrary to the
intent of the Framers, but it ignores the plain words of the
Constitution, the decisions of the United States Supreme
Court, and the decisions of the lower courts. Until Dukakis
and Perpich were decided by the federal district courts, no
federal court had held that Congress had the power under
the Constitution to authorize the Defense Department to call
out the National Guard in peacetime absent the declaration
of an emergency. Every other case has involved a situation
in which the Guard was called out in wartime or at a time
when a national emergency had been declared.
VII. Policy Arguments
The government argues that the Framers could not have
foreseen the degree of dependence that the United States las
A-54
placed on National Guard troops. If they had, the argument
goes on, they would never have intended the states to possess
the veto power given them in the 1952 Act. Thus, the govern-
ment asserts that the gubernatorial consent requirement al-
lows the states to participate in defense and foreign policy
decisions in ways the Framers never would have sanctioned.
In response, the Framers made a conscious decision to place
the bulk of the nation’s defensive forces in the hands of state
troops. Through much of American history, a large percentage
of the nation’s defensive forces have been organized in the
form of militia or state National Guards. See supra note 3.
Until 1986, state authority over these forces had been almost
entirely unchanged by Congress. While it is true that the
Framers did not want the states to make positive national
defense or foreign policy, they did intend the states to be a
check on potential abuse of military power by the federal
government. In this light, the gubernatorial veto requirement
of the 1952 Act is a particularly apt legislative adaptation of
a constitutional concept.
The government argues that the Montgomery Amendment
is necessary to ensure an effective national defense. However,
it provides no evidence that the effectiveness of the nation:
defense or of the National Guard will be diminished by an
adherence to the constitutional principle of basic state control
over the National Guard forces, absent a declaration of war
or of national exigency.
In the last fifteen years, the National Guard has become
a major part of the defensive force of the United States. After
the Vietnam War and the presidential action discontinuing
selective service registration, Congress decided to decrease
the size of the standing military and to place increased reli-
ance on reserve components, particularly on the National
A-55
Guard. In this “Total Force” concept, the reserve components
became major participants in the national defense effort.
The government maintains that the modern world has
grown far more complex and dangerous than it was in 1787.
The armed forces of the United States must today be able to
respond rapidly to a broader range of potential threats to the
national security than the Framers could have ever envisioned.
Thus, the government argues, state-based limitations on fed-
eral control embodied in the Militia Clauses applied to a
different time and different circumstances. The necessities
of the modern world require this Court to act “pragmatically”
and to read these anachronistic reserved powers either very
narrowly or out of existence entirely.
The figures that the majority cites show that the Nationa!
Guard is a major part of the defensive force of the United
States. However, if the national security is in any way
threatened, the federal government can quickly assume total
control over the National Guard by declaring a national exi-
gency. Thus, in any situation demanding quick action, there
would be no state-controlled obstacles to hinder the govern-
ment’s response.
The government’s second pragmatic argument follows close-
ly from the first Secretary Webb, in his Senate testimony,
explains that, because of the nation’s great dependence on the
National Guard, these forces must be extremely well trained.
This is necessary both so that they are prepared for all future
emergencies and so that, at the appropriate time, they can
mesh their operation with the regular army and other reserve
components. See 1986 Senate Hearings, supra, at 56-6-8.
Specifically, Secretary Webb asserts that the National Guard
units must train in foreign environments with their unusual
climates and terrain, alongside their full-time army and air
A-56
9
force counterparts, in order to achieve “operational readi-
ness.” Any interference by obstinate state governors in this
training process is likely to be disastrous in terms of the
Guard’s ability to operate effectively in a future crisis.
In response, all of the parties to this case agree that broad
training experience for the National Guard is essential to
the adequate defense of the United States. Indeed, even in the
midst of the Honduran training controversy in 1986, Lieu-
tenant General E. H. Walker, Chief of the National Guard
Bureau,“ stated:
[Njo governor has said he opposes overseas deployment
_ training—all have said they wholeheartedly believe in
it and understand and support the need for it.
1986 Senate Hearings, supra, at 95-5.
Since the Guard began training overseas in the early 1970's,
no governor has ever withheld his or her consent to a training
mission or any type of mission—until the National Guard
began to train in Honduras. Moreover, states have never op-
posed training on the basis of terrain or climate. They have
never opposed Guard exercises coordinated with regular
forces. In short, they have never opposed the substance or
content of training—nor are they likely to do so in the future.
The states have only opposed an order for training when the
real purpose of the order is something more than training.
31 10 U.S.C. § 3040 provides:
(a) There is a National Guard Bureau, which is a Joint Bureau
of the Department of the Army and the Department of the Air
Force, headed by a chief who is an adviser to the Army Chief
of Staff and the Air Force Chief of Staff on National Guard
matters. The National Guard Bureau is the channel of com-
munications between the departments concerned and the several!
States, Territories, Puerto Rico, the Canal Zone and the District
of Columbia on ail matters pertaining to the National Guard,
the Army National Guard of the United States, and the Air
National Guard of the United States.
A-57
In the case of the Honduran controversy, the state objections
all concerned the potentially dangerous implications that train-
ing in a politically explosive part of the world might have.
In this light, the substance of the government's training ar-
gument is better understood. The government does not argue
that gubernatorial consent prevents it from exposing Guards-
men to a proper diversity of climate or terrain or that it
prevents Guardsmen from training alongside their full-time
army and air force counterparts. This could be easily done in
non-controversial areas of the world, as it has in the past.
The real essence of the government’s argument must then be
that the National Guard must train in areas of extreme politi-
cal tension if it is to be an effective fighting force.** This
32 As Senator Glenn stated at the hearings:
I know back in my own state of Ohio this question came up,
why Honduras and why now? I think we ought to face that.
That is the reason we are up against this thing now. Normally,
we train in Panama—we have done that for a decade and a
haif or so—to give them jungie training.
The issue we have to address here and we have only touched
on it peripherally is why Honduras? I think the concept, the
view of many of the governors, is that we are looking for
[political] support for a policy that all Americans do not agree
with by sending people to Honduras.
I am being blunt about that, but that is the fact. That has been
editorialized across the country. That is the issue here real y.
Does the training have to be in Honduras’
When they were being ordered down to Honduras, it was the
very time there were border crossings, with reports of several
hundred people being killed. The governor had the National
Guard there when the perception was that we are sending our
people into the combat zone. That was the public perception.
1986 Senate Hearings, supra, at 23
53 General La Vern E. Weber (Retired), former Chief of the Na-
tional Guard Bureau, discussed the government's position in his
testimony to the Senate Subcomm tee
I submit to you that such deployments are highly desirable,
but not absolutely necessary to achieve combat readiness levels
National Guard units can be trained to Federal standards of
could be the case, but the government has presented no evi-
dence to support this argument.
Moreover, if the Honduran training controversy is a proto-
type of the dangers this country faces in the absence of the
Montgomery Amendment, the following is of some interest.
General La Vern E. Weber (Retired), former Chief of the
National Guard Bureau, noted that the Honduran controversy
had little effect on overall Guard training operations and
suggested that any difficulties stemming from such a contro-
versy in the future could easily be remedied through existing
regulations and the withholding of federal funds from non-
cooperative states. He stated:
Based on my discussions with key leaders of the Guard,
it is my opinion that recent public comments and actions
*
professionalism right here in the United States, in the schools
and maneuver areas Congress has provided for that purpose
Deployment to areas outside the CCNUS [Continental United
States] is highly desirable as adventure training. to enhance
morale and give the troops a brwad experience, but | submit to
you that in a training sense, driving a bulldozer in Fort McCoy.
Wisconsin, is very similar to driving a bulldoger in Honduras.
1986 Senate Hearings, supra at 100-01.
General Weber also stated
The narrow issue here is whether or not Congress believes that
Federal training standards must include duty in Honduras,
regardless of the arena of operation to which units are intended
to de deployed in some future conflict. If the Congress bel‘eves
that, then all Army and Air units, Regular Guard and Reserve
must be sent to Honduras.
Id. at 100.
General Weber concluded
Any legislative action at this time would not serve to improve
Guard readiness or availability in the event of emergency or
war. If the Congress is concerned that the Chief of the National
Guard Bureau cannot employ current directives to ensure proper
training of the Guard forces, they can, and shou d, direct that
he report periodically on any instances of refusal to train which
are likely to adversely impact on readiness.
id. at 102.
by state authorities have not impaired the nation’s ability
to rely on the National Guard nor have they adversely
impacted the units’ readiness. e
I strongly agree and believe the recent actions are only
an irritant which can be dealt with through existing
statutes and regulations. The Chief of the National Guard
Bureau has the authority to manage Federal funds appro-
priated for Guard training and can direct action as Chief
of the agency serving as the line of authority between the
Army and Air Force and the states.
1986 Senate Hearings, supra, at 99.**
One last pragmaric consideration. It is important to realize
that National Guard forces were involved in the recent inva-
sion of Grenada and the bombing of Libya. In both of these
instances, the Guard was activated under 10 U.S.C. § 672,
for “training”, rather chan under the operations provisions,
10 U.S.C. §§ 673, 673a, 673b, which require a declaration of
General Walker described in careful detail the “crisis” in National
Guard training operations that led to the Montgomery Amend-
ment.
In 1986 [the year the Montgomery Amendment was enacted |
more than 42,000 members of the Army and Air National guards
trained overseas in 46 countries. More than 9,000 Army and Air
Guard personne! from 43 states and territories trained in Central
America alone
„ „
The few governors that have precipitated [the Montgomery
Amendment! have stopped a total of 48 people from training
in one country—Honduras—not the other 45 countries. Those 48
people constitute 0001 percent of the total deploying force—less
people than report to sick call on an average base on a given
day, less people than have had to forego scheduled training for
employer support reasons and less people than have hed to fore
go participation due to other commitments Clearly 48 people in
comparison to the total deploying forces or the entire Guard
strength is insignificant im terms of impact
1986 Senate Hearings. supra at 9435 (emphasis added)
A-60
emergency or consultation with Congress. See Testimony of
Secretary Webb, 1986 Senate Hearings, supra, at 83;*° Com-
35 The following exchange concerning the recent bombing of Libya
by American forces comes from the 1986 Senate Hearings:
Senator Levin: Would [the Libyan raid] be treated as a
training mission?
Mr. Webb: That was under 672(d) which is for training.
Senator Levin: So, that use of National Guard troops in Libya
was considered a training mission by the DoD? |
Senator Warner: Under the law.
Senator Levin: Is that the way DoD considered it, tra.ning?
Mr. Webb: Under the law.
What you have is the compression of missions once the Total
Force Doctrine came into effect so that you have National Guard
units all over the world on any given day under the rubric of
672, which is a problem because you have to go all the way
from 672 to a Presidential 100-K call-up with very little in
between.
I understand where you are going and it is a problem. We
have a difficult time defining what is an operational mission
with the compression of these missions under the Total Force
Doctrine.
Senator Levin: I wondered whether DoD considered that a
training mission in Libya? That is my question.
Mr. Webb: I do not have authority to speak on how Secretary
Weinberger would have termed that.
Senator Levin: Could ycu answer that also for the record?
Could you check with the Secretary’s office and le‘ us know
that, too?
1986 Senate Hearings, supra, at 82-83.
Secretary Webb later sent the subcommittee the following written
response to Senator Levin's question:
The Air National Guard aircraft utilized in support of the
Libyan raid was already in Europe as part of routine tanker
task force activities. Under long standing practice, Guard and
Reserve air refueling aircraft supplement active force refueling
aircraft assigned to a tanker task force stationed in Europe. The
tanker tasK force provides day-to-day refueling training oppor-
tunities to Guard and Reserve crews, and is also available to
the theater commander to meet any operational requirement
that may arise. The Libyan rad was just such an operational
requirement. The Guard aircraft was not sent to Europe for
A-61
ment, supra note 2, at 636. Some commentators have suggested
that this use of these active duty provisions for training“ was
“surreptitious” and designed to elude the statutory require-
ments for operaticnal missions. See Comment, supra note 2,
at 636. Whatever the case, prior to the Montgomery Amend-
ment, the governors, as the representatives of their states,
provided at least some check on the potential abuse of these
provisions. Without the governors, there would be no check
at all. 9
VIII. Conclusion
The world has changed since 1787. It is smaller than it
once was. Today’s military forces need to be able to respond
promptly. Yet, the world ! as not changed so dramatically that
we can no longer abide by the explicit provisions of our Con-
stitution. Congress simply cannot take away state control over
the militia by calling the militia by a different name, NGUS,
and by giving it concurrent federal duties.
Federalism is not yet meaningless. It remains a vital ele-
ment in our constitutional system, both as a check on the
unwise use of central power and a bulwark of the freedom
that derives from local autonomy. In this light, it is undeniable
that fundamental powers given to the states explicitly in the
Constitution—whether these powers concern civil rights,
property rights or state militias—cannot in the absence of
the formal amendment process be rendered a legal nullity
by the sheer force of a political expediency.
The requirement that the President or the Congress declare
the existence of a national exigency—particularly when that
the specific purpose of participating in the Libyan raid. Under
section 672(d) the crews can be on active duty, including active
duty for training. The crew of this Guard aircraft was on active
duty.
Id. at 83 (attachment).
A-62
statement is not subject to challenge—is a small concession
indeed to the doctrine of separation of authority which
underlies our constitutional system.
When the nation did not face a specific internal or external
threat, the Framers wished part of the nation’s military
power to be under the control of the states to check the
possibility of abuse of military power by the federal govern-
ment. In this vein, the Constitution of the United States
“reserv[es] to the States respectively * * the Authority of
training the Militia * * * .” When the words and the intent
come together in such a manner, our duty is clear. We must
uphold the Constitution.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
P K ia. ee *
A-62.1
UNITED STATES COURT OF APPEALS
For The Eighth Circuit
No. 87-5345
RUDY PERPICH, etc., et al.,
Appellants,
vs.
UNITED STATES DEPARTMENT OF DEFENSE,
et al.,
Appellees.
AMENDED ORDER
Appeal from the United States District Ccurt for the
District of Hinnesota
Appellee’s petition for rehearing en banc has been con-
sidered by the Court and is granted. The Court’s opinion and
judgment of December 6, 1988 is hereby vacated.
January 11, 1989
Order Entered at the Direction of the Court:
ROBERT D. ST. VRAIN
Clerk, U.S. Court of Appeals,
Eighth Circuit.
r ee ee Se ee ee ee ee es 6
Supreme Court, U.S.
5 FILED
89 2542 SEP 26 1989
JOSERH F. SPANIOL, JR.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
RUDY PERPICH, as Governor of the State of Minnesota,
and THE STATE OF MINNESOTA, by its Attorney
General Hubert H. Humphrey, III,
Petitioners,
vs.
UNITED STATES DEPARTMENT OF DEFENSE,
et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
(PART II)
HUBERT H. HUMPHREY, III
Attorney General
State of Minnesota
JOHN R. TUNHEIM
Chief Deputy
Attorney General
Of Counsel: Counsel of Record
PETER M. ACKERBERG 102 State Capitol
Special Assistant St. Paul, Minnesota 55155
Attorney General Telephone: (612) 296-2351
Ter Review Publishing Ca, 287 EG St, Se Pal, Mims SLO e
TABLE OF CONTENTS
APPENDIX — PART II
1. Eighth Circuit panel opinion (Part II) „
2. District Court memorandum order (Part II 4141
A-63
UNITED STATES COURT OF APPEALS
For the Eighth Circuit
No. 87-5345
Rudy Perpich, Governor of the State of Minnesota;
State of Minnesota, by its Attorney General
Hubert H. Humphrey, III,
Appellants,
Commonwealth of Massachusetts, et al.
Amicus Curiae
V.
United States Department of Defense, United States
Department of Air Force, United States Department of
Army, National Guard Bureau, Frank Carlucci, Secretary
of Defense; John O. Marsh, Jr., Secretary of the Army;
Edward C. Aldridge, Secretary of the Air Force;
Lt. Gen. Herbert R. Temple, Jr., National Guard Bureau,
Appellees.
U.S. National Guard Assn.,
Amicus Curiae
Firearms Civil Rights Legal Defense Fund,
Amicus Curiae
A-64
Appeal from the United States District Court for the
District of Minnesota.
Submitted: February 9, 1988
Filed: December 6, 1988
Before HEANEY, Circuit Judge, FAIRCHILD,* Senior
Circuit Judge, and MAGILL, Circuit Judge.
HEANEY, Circuit Judge.
I. Introduction
Prior to 1986, state National Guard units could not be sent
on federal training missions without the consent of their
state governors. See 10 U.S.C. § 672(b) and (d). The Mont-
gomery Amendment, Pub. L. No. 99-661, § 522, 100 Stat. 3816,
3871 (codified at 10 U.S.C. § 672(f) (1986)), prohibits gov-
ernors from refusing permission on the basis of the “location,
purpose, type, or schedule” of the training mission. It thus
effectively eliminates the prior consent requirement.
The Constitution of the United States provides that Con-
gress shall have the power:
To provide for organizing, arming, and disciplining the
Militia, and for governing such part of them as may be
employed in the Service of the United States, reserving
to the States respectively * * * the Authority of training
the Militia according to the discipline prescribed by
Congress.
U.S. Const. art. I, § 8, cl. 16 (Clause 16) (emphasis added).
Members of the Minnesota National Guard are concurrent
members of the Army National Guard of the United States
or the Air National Guard of the United States, which
* The HONORABLE THOMAS E. FAIRCHILD, United States Senior
Circuit Judge for the Seventh Circuit, sitting by designation.
A-65
are reserve components of the United States Army and the
United States Air Force. In 1986, the United States Depart-
ment of Defense ordered members of the Minnesota National
Guard to active duty for training missions in Central Amer-
ica pursuant to 10 U.S.C. § 672(b) and (d).
Governor Rudy Perpich of Minnesota claims that, but for
the Montgomery Amendment, he would not have consented
to one of these training missions. Further, he expects that
the Department of Defense will order Minnesota National
Guard troops to active duty for training purposes outside of
the United States in the future. Perpich claims that the Mont-
gomery Amendment, by effectively withdrawing the guber-
natorial consent requirement of 10 U.S.C. § 672 (b) and (d),
violates the militia training clause of the United States Con-
stitution.
In response, the government argues that the Montgomery
Amendment is a proper exercise of congressional authority
derived from its powers to raise and support armies together
with the necessary and proper clause. Specifically, it con-
tends that these two powers, exercised together, can super-
sede the states’ reserved authority over the militia at will.
In addition, the government asserts that the gubernatorial
consent requirement allows the states to participate in na-
tional defense and foreign policy decisions in ways the Con-
stitution does not permit. Finally, because of the importance
of the National Guard to the national defense, the government
argues that pragmatic considerations require this Court to
read anachronistic state powers embodied in the militia
clauses very narrowly.
The district court granted the government’s motion for
summary judgment, in essence agreeing with the government’s
first argument. Perpich v. United States Dep’t of Defense,
A-66
666 F. Supp. 1319 (D. Minn. 1987) ; see also Dukakis v. United
States Dep’t of Defense, 686 F. Supp. 30 (D. Mass. 1988),
aff d, No. 88-1510 (1st Cir. Oct. 25, 1988) (per curiam)
(Dukakis).
We reverse and hold that the Montgomery Amendment,
which deprives the states of the “Authority of training the
Militia,” violates the Constitution of the United States.
First, the Montgomery Amendment contravenes the intent
of the Framers. The Framers designed the militia (or National
Guard) to serve as a check on the potential abuse of military
power by the federal government. Specifically, they intended
the states to exercise control over the milita (or National
Guard) when the national security was not threatened. In
these circumstances, the states were to have authority to with-
hold support from military projects of the federal govern-
ment they did not support. Next, the Framers created the
second amendment to guarantee the perpetual existence of
state-controlled militia (or National Guard) as a check on the
abuse of military power by the federal government. See U.S.
Const. amend. II. Further, if the Framers intended the army
power to supersede state control over the militia (or National
Guard), it was only in circumstances in which the national
security was threatened. Finally, the Framers believed that
powers, such as the reserved state authority over the militia,
were enumerated in the Constitution to be insulated from
irresponsible, short-term political reaction. The Montgomery
Amendment frustrates all of these purposes.
Second, the Montgomery Amendment violates the plain
language of the Constitution. To further the intentions listed
above, the Constitution “reserv[es] to the States respectively
* * * the Authority of Training the Militia * * * .”
Third, the Montgomery Amendment is at odds with the
declarations of the Supreme Court. The Court has stated
A-67
that the army power supersedes the militia power only if the
government declares war or alternatively determines the ex-
istence of a national exigency.
Fourth, the Montgomery Amendment violates constitutional
requirements by attempting to supersede reserved state au-
thority over the militia (or National Guard) without an af-
firmative declaration of a national emergency or exigency.
Fifth, prior to 1986, congressional legislation concerning
the National Guard had done nothing to change its state-
controlled character when the national security is not threat-
ened. The Montgomery Amendment thus departs from an
unbroken pattern of congressional deference to reserved state
authority over the militia (or National Guard), embodied in
the militia clauses.
Sixth, gubernatorial veto power over federal requests for
National Guard troops, when the national security is not
threatened, does not impermissibly involve the states in de-
fense or foreign policy decisions.
Finally, the government has not demonstrated that the
effectiveness of either the national defense or the National
Guard will be diminished by adherence to the constitutional
principle of basic state control over National Guard forces,
absent a declaration of war or national exigency.
Il. The Intent of the Framers
A. The Militia Clauses
As with many other powers defined in the Constitution,
the military power of the United States was based on a sys-
tem of checks and balances. The Framers divided authority
over the military, not only between the coordinate branches
of the federal government, but also to a significant degree
between the federal and state governments.
The division of power between the federal government and
the states is emphasized in several ways. First, because of
A-68
ö
the Framers’ fear that a large standing army would lead to
military abuses by the federal government, state militias were
intended to comprise the bulk of the nation’s defensive force.
Second, control over militias was explicitly shared be-
tween the federal government and the states. (In this light,
the states were to appoint the militia’s officers and to control
the actual training of militiamen.) Third, while the Framers
did not want the states to make positive national policy in
the areas of defense or foreign relations matters,' they did
intend the states to use their control over the militia to prevent
the federal government, except in circumstances where they
believed the national security was threatened, from using state
troops in military undertakings objectionable to the states and
their citizenry.
Under the Articles of Confederation, the states were re-
quired to “keep up a well regulated and disciplined militia
*** U.S. Arts. of Confed. art. VI. The central government
had power to declare war and the supervisory authority to
order the states to produce quotas of armed and trained troops.
Id., art. IX. This system proved unworkable. The states had
too much independent power to resist the requests of the
central government. The troops provided were often inad-
equately trained and equipped and thus difficult to coordinate
into a cohesive defensive force.
Thus, as the delegates assembled during the summer of
1787 to draft a more viable instrument of government, one of
the most pressing objectives was the creation of a stronger,
more reliable defensive force. This broad aim was widely
1The Constitution provides that “No State shall enter into any
Treaty, Alliance, or Confederation; grant Letters of Marque or
Reprisal; * * * keep Troops, or Ships of War in time of peace,
enter into any Agreement or Compact with another State, or
with a Foreign Power, or engage in War * * U.S. Const. art. I,
§ 10, cls. 1, 3.
ee ee eS er? ee! lS
A-69
shared ; however, the effort to find a specific solution proved
extremely ¢’visive. From the outset, it was agreed that the
problem would not be solved by the creation of a larye, fed-
erally controlled standing army. The Framers ic ntified such
a force with British tyranny, potential oppression of both he
states and individual citizens, and expensive, unpopular mili-
tary adventures. Thus, while the Framers would ultimately
provide for a standing army, they limited its power by declar-
ing that military appropriations had to be approved every two
years. U.S. Const. art. I, § 8, cl. 12. More importantly, the
Framers intended state militias to provide for the nation’s
basic defense, with reliance on a standing army only as a
last resort.“
2See Friedman, Conscription and the Constitution: The Original
Understanding, 67 Mich. L. Rev. 1493, 1507-1541 (1969). Indeed, as
delegate Edmund Randolph noted at the Virginia ratifying con-
vention, “there was not a member of the federal convention who
did not feel indignation” at the idea of a standing army. 3 J.
ElHot, The Debates in the Several State Conventions on the Adop-
tion of the Federal Constitution / (1901) (Elliot). See also
Hirsch, The Militia Clauses of the Constitution and the National
Guard, 56 U. Cin. L. Rev. 919, 924 (1988) (Hirsch); Comment, The
Constitution and the Training of National Guard Officers: Can
State Governors Prevent Uncle Sam From Sending the Guard to
Central America’, 4 J. L. & Pol. 597, 600, 601 (1988) (authored by
P. Fisb) (Comment).
3 As the Supreme Court noted in United States v. Miller, 307 U.S.
174, 179 (1939), “The sentiment of the time [of the ratification of
the Constitution] strongly disfavored standing armies; the com-
mon view was that adequate defense of the country and laws
could be secured through the Militia—civilians primarily, soldiers
on occasion.” See also Hirsch, supra note 2, at 924. Apparently,
this view was a longstanding one, for Hirsch notes that militia
“did the bulk of the fighting, often with success, in the War of
1812, the Mexican-American War, the Civil War (for both the
Confederacy and the Union), and the Spanish-American War.” Id.
at 943. Hirsch points out that for the duration of the nineteenth
century, “the militia remained the primary military force of the
country.” Id. at 944. “By 1898,” he notes, the regular army had
18,000 troops, compared to 115,000 militiamen.” Id.
= „ SO
A-70
As a corollary to the decision to rely largely on the militia
for the nation’s defense, it was necessary to provide increased
federal control over these forces in order to achieve the goal
of improving the nation’s military effectiveness. The Con-
vention rapidly agreed that the state militias would be placed
under the control of the federal government in emergency
situations, such as when insurrection or invasion was threat-
ened, or when the militias were needed to enforce th: laws
of the country. See U.S. Const. art. I, § 8, cl. 15 (Clause 15)
(“Congress shall have the power [tjo provide for calling
forth the Militia to execute the laws of the Union, suppress
Insurrections and repel Invasions * * ).“ However, in
other cases, the degree of control the federal government
would exercise over state militias was a point of extreme
contention.
Nationalist delegates believed in strong federal control of
the state militias in order to create a dependable, coordinated
defensive force.“ States-rights delegates profoundly opposed
4 The United States, at the time the Constitution was ratified, was
a nation of extreme isolationist sentiment. According to one
noted commentator, [Pleace was expected to be the customary
state of the new nation. America would avoid aggressive war
abroad and enjoy in turn ‘an insulated situation’ from the great
powers of Europe * * * . This placid view of foreign relations
precluded any explicit consideration of the use of American force
abroad, except for defensive naval action * * W. T. Reveley,
War Powers of the President and Congress 61 (1981).
Thus, it might be that the Framers intended the militia to be
available whenever the security of the union was threatened, and
that insurrection, invasion, and the need to execute the law were
the only such threats that the Framers, given their worid view,
specifically contemplated.
5 Early in the Constitutional Convention, for example, Alexander
Hamilton presented a proposal urging “the militia of all the
States to be under the sole and exclusive direction of the United
States, the officers of which to be appointed and commissioned by
them.” See J. Madison, Notes of Debates in the Federal Convention
164 (Hunt 1920). The Convention ignored Hamilton's proposal.
A-71
such federal power.“ The delegates voiced fears that power-
ful federal authority over the state militias would, like the
existence of a large standing army, lead to military abuses
by the new government. They particularly feared that such
authority would allow the federal government to tyrannize
defenseless individual states and their citizens’ and could
leave the states without the means to meet their own public
needs.
The debate between these factions was vigorous, for neither
extreme had sufficient support at the Convention for its
6 Madison's notes from the Federal Convention indicate the strong
opposition many delegates voiced to giving the federal govern-
ment too much control over the militia.
Delegate Oliver J. Elsworth of Connecticut:
The whole authority of the militia ought by no means to be
taken away from the States whose consequence would pine away
to nothing after such a sacrifice of power. He thought the [gen-
eral} Authority could not sufficiently pervade the Union for
such a purpose, nor could it accommodate it-elf to the local
genius of the people. It must be vain to ask the States to give
the Militia out of their hands.
Delegate John Dickinson of Delaware:
We are come now to a most important matter, that of the sword.
His opinion was that the States never would nor ought to give
up all authority over the Militia. He proposed to restrain the
general power to one fourth part at a time, which by rotation
would discipline the whole Militia.
Madison's Notes of the Federal Convention, reprinted in, S. Rep.
No. 695, 64th Cong., 2d Sess. 33 (1917) (The Militia).
7 Delegate Elbridge Gerry of Massachusetts feared that federal
control over the militia would “enslave the states” and lead to a
“system of despotism.” The Militia, supra note 6, at 31, 33.
® Madison's notes contain the following:
Mr. Roger] Sherman [of Connecticut], took notice that the
States might want their militia for defense [against] invasions
and insurrections, and for enforcing obedience to their laws.
Id. at 3A.
A-72
— — —
position to prevail.“ After several months of discussion and
many days of hard-fought exchange on the floor of the con-
vention, delegates, such as George Mason, began to seek a
compromise which would provide the federal government
with sufficient control over the militia to meet its defensive
needs, while at the same time assuring the states sufficient
authority to check the potential abuse of military power by
the federal government.
On August 21, 1787, the Convention was presented with a
workable compromise. The new proposal provided the federal
government the authority “[t]o make laws for organizing,
arming, and disciplining the militia, and for governing such
part of them as may be employed in the service of the U.S.”
On the other hand, it preserved significant state power over
the m‘litia by “reserving to the States respectively the appoint-
ment of the officers, and the authority of training the militia
according to the discipline prescribed by the U. States.“
® See Friedman, supra note 2, at 1512-20.
10The power of states-rights delegates to exact significant conces-
sions from the nationalist delegates is demonstrated in the course
of the debates at the Federal Convention. Mason offered three
successive proposals to the Convention, each providing the states
more authority over the militia than the last. Mason’s fina!
proposal sought to provide the federal government “regulatory”
authority over the militia insofar as this was necessary to estab-
lish uniformity in training and arms so that the state forces
could be melded into a cohesive force when the need arose. In
the states’ interest, Mason proposed that this federal regulatory
authority would be limited to one-tenth part of each year, that
appointment of off‘cers would be in state hands, and that the states
would be exempt from federal authority whenever they needed
to use their militia on state business. This, however, did not
satisfy the states-rights delegates, and the matter was referred
to a central committee for resolution. The Militia, supra note 6,
at 31-35.
11 The Militia, supra note 6, at 34 (emphasis added). This compro-
mise, with minor stylistic changes, was ultimateiy approved by
the Convention.
A-73
Delegate Hamilton declared that the authority to appoint
officers was given to the states in order to secure for them
“a preponderating influence over the militia.” The Feder ilist
No. 29, at 185 (A. Hamilton) (J. Cooke ed. 1931) (Cooke).
Moreover, the debates at the Convention show that the train-
ing clause was retained in the text of the Constitution to
ensure that the power to “organize, arm, and discipline” state
forces given the federal government by the militia clauses
did not surreptitiously extend federal control over the actual
training of the militia.'*
12 Clause 16 provides Congress with the power to “discipline” the
militia and res ves to the states the Authority of trai
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